UNIVERS/ 


—n 


CONSTITUTIONAL  LAW 


JAMES  PARKER  HALL,  A.  B.,  LL.  B. 

Professor  of  Law  and  Dean  of  Law  School, 
University  of  Chicago 


3S3G1 


PUBLISHED  BY 

Lasalle  extension  university 

CHICAGO 

1922 


This  volume  is  one  in  a  series  entitled 
AMERICAN  LAW  AND  PROCEDURE 


COPYRIGHT,   1910,   1911.   1913,   1915,    1920,   1921 

LaSalle  extf.nsiom  university 


H  IV 

CONTENTS 


CONSTITUTIONAL  LAW. 

PART  I. 
GENERAL  CONCEPTIONS. 

CHAPTER  I. 
Preliminary  Topics. 

SECTION    1. 

Nature  of  American  Constitutional  Law. 

§     1.     Modern   constitutional   government 1 

§     2.     What  is  a  constitution 3 

§     3.     The  English  constitution  and  Parliament 3 

§     4.     Differences  between  written  and  unwritten  constitutions..  4 

§     5.     Written  constitutions  in  America 5 

§     6.     Outline  of  American  constitutional  history  before  1789. ...  6 

SECTION    2. 
Making  and  Changing  American  Constitutions. 

§     7.     Earliest  American  state  constitutions 8 

§     8.     Constitution  of  Massachusetts 9 

§     9.     The  Articles  of  Confederation 10 

§  10,     Adoption  of  the  United  States  Constitution 11 

§  11.     Modes   of  amending  constitutions 12 

§  12.     Same:    Where  constitution  contains  no  express  provision. .  13 
§  13.     Same:     Where  constitution  provides  a  non-exclusive  mode 

of  amendment    14 

§  14.     Same :    Exclusive  mode  of  amendment  expressly  provided . .  14 

§  15.     Peaceful    revolutions 14 

§  16.    Amendment  of  Federal  Constitution 15 

SECTION    3. 
Separation  of  Departments  of  Government. 

§  17     General  American  doctrine 16 

§  18     Judicial    powers    cannot    be    exercised   by   legislative   and 

administrative  bodies 16 

§  19      Same :    Further  illustrations 17 

i 


u  CONTEXTS 

§  20.     Xon-jutlicial  powrrs  cannot  be  oonfeiTod  on  courts 18 

^  21.     Inherent  powei-s  of  departments  of  pfoveniment 19 

§  22.     Limitations  of  greneral  doctrine 21 

§  23.     Siune :     Appointment  of  ofTicei*s — Taxation 21 

SECTION    4. 
The  States  and  The  United  States. 

§  24.     General   theory  of  state  powers 22 

§  25.     Powers  of  state  governments  before  1789 23 

§  26.     Division  of  jwwers  between  state  and  nation  effected  by 

Federal    Constitution 25 

§  27.     Nature  of  the  Federal  Government:     Of  limited  powers..  26 
§  23.     Same :     Supreme  in  its  sphere 27 

CHAPTER  11. 
Function  of  Judiciary  in  Enforcing  Constitutions. 

SECTION    1. 

Power  to  Declare  Laws  Unconstitutional. 

§  29.     Departments  of  government 29 

§  30.     Power  to   declare   laws   unconstitutional.     Where   does  it 

reside    29 

§  31.     Same :      European    doctrine 29 

§  32.    Same :     English  doctrine 31 

§  33.     Colonial  practice — Its  influence 32 

§  34.     Early  American   decisions 33 

§  35.     Decision  under  Federal  Constitution:    Marbui-y  v.  Madison  34 
§  36.    Reasons  for  the  doctrine 35 

SECTION    2. 
Limitations   Upon  Exercise  of  Power. 

§  37.    Power  is  strictly  judicial  in  character 36 

§  38.     Unconstitutionality  should  be   clear 36 

§  39,     Same :    Judicial  declarations  to  this  effect 38 

§  40.    Exercised  only  in  actual  litigation 39 

§  41.    Power  not  applicable  to  political  acts 40 

§  42.     When  other  departments  cannot  be  compelled  to  act.....  42 

§  43.     Laws  not  invalid  merely  because  unwise 43 

§  44.     Administrative  regulations  of  the  power 44 

SECTION  3. 
Effect  of  an  Unconstitutional  Act. 

§  45.     In  general — Incidental  effect 46 

§  46.     Effect   of  partial   unconstitutionality 47 


CONTENTS  m 

SECTION    4. 

Advisory  Opinions. 

§  47.    Nature  and  effect  of  advisory  opinions 48 

PART  II. 

FUNDAMENTAL  RIGHTS. 

CHAPTER  III. 

History  and  Scope  of  Fundamental  Constitutional  Rights. 

SECTION  1. 

Classification  of  Constitutional  Provisions. 

§  62.     Provisions  establishing  the  frame  of  government 50 

§  63.     Provisions  guaranteeing  fundamental  private  rights 50 

§  64.     Provisions  regulating  intergovernmental  relations  under  our 

Federal    system 52 

§  65.     Provisions  regulating  government  in  detail 52 

SECTION    2. 
State  and  Federal  Constitutional  Guarantees  Before   1865. 

Early  state  constitutions  and  original  Federal  Constitution.  53 

Federal  bill  of  rights — Amendments  I  to  X 53 

Federal  prohibitions  upon  the  states  before  1865 54 

SECTION    3. 
Scope    of    Later   Amendments    to    Federal    Constitution. 

Thirteenth  Amendment 56 

Adoption  of  Fourteenth  Amendment 57 

Analysis  of  Fourteenth  Amendment 58 

Fourteenth  Amendment  forbids  state  action  only 59 

What  amounts  to  sbate  action 61 

What    are    privileges    and    immunities    of    citizens      of 

United    States    62 

§  75.    Fifteenth  Amendment 66 

CHAPTER  IV. 
Political  Rights. 

SECTION    1. 

Citizenship. 

§  76.    Federal  citizenship  before  Fourteenth  Amendment 67 

§  77.     Citizenship  by  birth  under  Fourteenth  Amendment 68 

§  78.    Limitations  upon  citizenship  by  birth 68 

§  79.     Meaning  of  ''bom  within  the  United  States" 69 

§  80.    Persons  excluded  as  not  "subject  to  the  jurisdiction"....  70 


§ 

66. 

§ 

67. 

§ 

68. 

§ 

69. 

§ 

70. 

§ 

71. 

§ 

72. 

§ 

73. 

§ 

74. 

b  CONTEXTS 

§  SI.     (a)     Children   of  diplomalip   roprcstMitatives 70 

^  S'J.     (b)     Children  bom  on   foreign  public  vessels 71 

§  S3,     (c)     Children  of  public  enemies  in  hostile  occupation  of 

territory'     71 

15  S4.     (d)     Expatriated    persons 72 

§  So.     (e)     Tribal   Indians 72 

§  S6.  Status  of  native  inhabitants  of  ceded  Spanish  colonies....  73 

§  87.     Status  of  corporations 74 

SECTION    2. 
Naturalization. 
§  S8.     Exclusive    power    of    Federal    Government    over    national 

citizenship 74 

§  89.     Collective    naturalization    75 

§  90.     Power  to  confer  state  citizenship 75 

SECTION    3. 
Suffrage. 

§  91.     Early  qualifications  for  state  suffrage 76 

§  92.     Original  provisions  of  Federal  Constitution 76 

§  93.     Constitutional  changes  affecting  suffrage  before  Fifteenth 

Amendment    78 

§  94.     State   limitations   upon   suffrage   since   Fifteenth    Amend- 
ment     79 

§  95.     Suffrage  not  a  necessary  incident  of  citizenship 81 

§  96.     Relation   of   suffrage    limitations   to    congressional    repre- 
sentation      82 

SECTION    4. 
Miscellaneous  Political  Rights. 
§  97.    Republican   form  of   government,   invasion,   and   domestic 

violence    83 

§  98.    Freedom  of  speech  and  press 83 

§  99.    Right  of  assemblage   and   petition 84 

§100.    Right  to  bear  anns 84 

CHAPTER  V. 

Personal  and  Religious  Liberty. 

§101.     Constitutional  history  of  slavery  in  United  States 86 

§102.     What  constitutes  slavery?     Compulsory  service  of  sailor..  87 

§103.     Same:     Compulsory  service  to  discharge  debt 88 

§104.     Same :     Imprisonment   for  breach    of   labor   contract ....  89 

§1 05.     Religious  liberty  90 


CONTENTS  V, 

CHAPTER  VI. 

Protection  to  Persons  Accused  of  Crime. 
§10a     Introduction   91 

SECTION   1. 

Bills  of  Attainder  and  Ex  Post  Facto  Laws. 

§107.     Bills  of  attainder 92 

§]  08.    Ex  post  facto  laws :    Eai'ly  definition 93 

§109.     Same :     Later  definition 94 

§110.    What  is  a  mitigation  of  punishment 94 

§111.    Changes  in  procedure 95 

§112.     Retroactive  qualifications  for  a  profession 96 

§113.     Same :    Ex  post  facto  if  unreasonable 98 

SECTION    2. 

Self-incrimination. 

§114.  General  scope  of  privilege 99 

§115.  Purely  personal  100 

§116.  Protects  only  against  criminal  prosecution 100 

§117.  Secures  immunity  only  in  the  immediate  jurisdiction 101 

SECTION    3. 

Unreasonable  Searches  and  Seizures. 

§118.     General  scope  of  privilege 101 

§119.     Extends  to   the  mails 102 

§120.     Forbids  general  warrants 103 

SECTION    4, 

Juries. 

§121.     Definition  of  a  trial  jury 104 

§122.     Constitutional  function  of  judge  in  jury  trials 104 

§123.     Misdemeanors  may  be  tried  without  jury 105 

§124.     Diversities  of  constitutional  requirement 105 

§125.    Grand   juries 106 

SECTION    5. 

Miscellaneous   Rights. 

Notice — Witnesses — Counsel    106 

Excessive  bail  and  fines 107 

Cruel  and  unusual  punishments 107 

Double  jeopardy  109 


vi  CONTEXTS 

CHArTKR  VII. 
Due  Process  and  Equal  Protection  of  Law:  Procedure. 

SECTION    1. 

Due  Process  of  Law. 

§130.     General  requisites  of  due  process  in  procedure Ill 

§131.    Jurisdiction    112 

§132.     Any  procedure  giving  notice  and  fair  hearing  is  valid 113 

§133.     Procedure  according  to  settled  usage  is  valid 115 

§134.     Summary  destruction  of  personal  property 117 

§135.     Exercise  of  legislative  power  by  boards 118 

§136.     Proper  procedure  for  taxation  and  eminent  domain 119 

§137.     Procedure  in  matters  over  which  government  has  absolute 

control    121 

§138.     Judicial  tribunal  not  necessary 122 

§139.     Kind  of  notice  required 124 

§140.     Erroneous  and  fraudulent  decisions 125 

§141.     Denying  or  hindering  access  to  the  courts  upon  the  ques- 
tion of  due  process  itself 126 

§142.     Self-incrimination    not    forbidden — Confronting   witnesses 

not  required 128 

SECTION    2. 

Equal  Protection  of  the  Laws. 

§143.    Discriminatory  exclusion  from  jury  service 129 

CHAPTER  Vni. 

Dne  Process  and  Equal  Protection  of  Law:    Powers  of 
Regulation — Police  Power. 

SECTION    1. 

General  Conceptions. 
§144.     Fundamental  guarantees  apply  to  rights   as  well  as  pro- 
cedure     131 

§145.     They  apply  to  all  departments  of  government 132 

§146.     Meaning  of  liberty - 133 

§147.     Meaning  of  deprivation  of  property 135 

§148.     Meaning  of  equal  protection  of  the  laws 136 

§149.     Application  of  these  guarantees  to  corporations 138 

§150.     Definition   of  police  power 139 

§151.     Classification  of  subjects  of  police  power 140 


CONTENTS  vii 

SECTION    2. 

Regulation  of  Social  Interests. 

§152.    Public  health 140 

§153.     Public    morals 141 

§154.     Public   safety    143 

§155.    Public  order  and  comfort — Esthetics 143 

§156.     Licensing  occupations   144 

§157.     Domestic  relations — Dependent,   delinquent,  and   defective 

pei-sons    144 

SECTIOIJ    3. 
Economic  Interests. 

§158.    In    general 145 

§159.     Protection  against  fraud 14G 

§160.     Protection  against  oppression 146 

§161.     Business  affected  with  a  public  interest 148 

§162.     Regulation   of  corporations 150 

§163.     Regulation  of  ownership  of  property 150 

§164.     Compelling  joint  action  to  improve  property 151 

§165.     Special  liabilities  due  to  nature  of  business 152 

^266.     Special  liabilities  due  to  natural  condition  of  property. ..  .152 
§167.    Retroactive  laws 153 

SECTION    4. 
Administrative  Regu lations. 

§168.     In    general 155 

§169.     Illustrations    156 

§170.     Prima  facie  rules  of  evidence 157 

CHAPTER  IX. 

Due  Process  and  Equal  Protection  of  Law:  Taxation. 
§171.     General    requisites 158 

SECTION    1. 

Jurisdiction  for  Purposes  of  Taxation. 

§172.  Object  taxed  must  have  situs  in  jurisdiction 158 

§173.  Real  estate  and  chattels 159 

§174.  Corporate   assets 160 

§175.  Corporate  assets  in  several  states 161 

§176.  Debts   163 

§177.  Documentary  evidence  of  debts  or  property 164 

§178.  Credits  employed  in  business 165 

§179.  Shares  of  stock 166 

§180.  Franchises    167 


▼iU  CONTENTS 

§181.  Situs  of  property  for  inheritance  taxes 169 

§1.S2.  Same:     Domestic  property  of  resident  decedent 170 

§183.  Same:     Foreipn  property  of  resident  decedent 170 

§!S4.  Same:     Domestic  property  of  non-resident  decedent 171 

§183.  Foreign  property  of  non-resicient  decedent 173 

SECTION    2. 
What  is  a  Public  Purpose  for  Taxation? 

§1S6.  Discharjje  of  povernmeutal  functions 173 

§187.  Objects  not  in  fact  of  public  benefit 175 

§188,  Deraoraliziuir  public  benefits 175 

§1S9.  Supplying  needs  for  which  private  enterprise  is  inadequate.  177 

§100.  Influence   of  historical    considerations 180 

§191.  Ta.x  exemptions 180 

§192.  Discharging  moral  obligations  of  government 181 

§193.  Pensions    183 

§194.  Public   charity 183 

SECTION   3. 

Classification  of  Objects  for  Taxation. 

§195.  In    general 184 

§196.  General  municipal  taxation 184 

§197.  Municipal    taxing   district    may     be     created    for    special 

purpose    185 

§198.  Illustrations— Limits  of  doctrine 186 

§199.  Theorj-  of  local  assessments 188 

§200.  Same :     Exceptions  and  qualifications 189 

§201.  Different  kinds  of  taxes 191 

§202.  Legislative  discretion  in  selecting  objects  of  taxation. ..  .192 

§203.  Same:      Limitations 193 

§204.  Same:      Illustrations 195 

§205.  Progressive    taxation 196 

§206.  Confiscatory  taxation 197 

CHAPTER  X. 

Due  Process  and  Equal  Protection  of  Law:     Eminent  Domain. 
§207.     Power  of  eminent  domain   and  guarantees  respecting  it.  .199 
§208.     Various    interferences    with    property    distinguished    from 

eminent    domain    200 

§209.     What   is  a  public   use    201 

§210.     Same :     Illustrations    203 

§211.     Same :     Esthetic  purposes    205 

§212.    Legislative   discretion    ...205 


CONTENTS  ix 

§213.     What  kind  of  property  may  be  taken    206 

§214.     What  amounts  to  a  taking  of  property  207 

§215.     Physical  occupation  of  property 208 

§216.     Substantial  intrusion  of  tangible  material 209 

§217.     Noise  and  pollution  of  atmosphere 210 

§218.     Improvement    of   navigation 211 

§219.     Changes  in  public  streets 211 

§220.     What  are  legitimate  public  uses  of  streets  213 

§221.     Compensation  in  money 214 

§222.     Compensation    in    benefits 216 

§223.     Preliminary   surveys    before   compensation 216 

§224.    Liability   for   damaging  property 217 

§225.    Condemnation  proceedings 218 

CHAPTER  XI. 

Laws  Impairing  Obligations  of  Contracts. 

Constitutional    prohibitions    219 

What  acts  of  impairment  are  forbidden   22(/ 

What  is  a  contract   221 

Same :     Grants    222 

Same :     Corporation  charters 224 

What  is  the  obligation  of  a  contract 225 

Impairment  of  remedies  for  breach  of  contract 227 

Same :     Municipal  bond  cases 229 

Same :     No  taxing  officers 230 

Same :      Abolition    of    indebted    municipality 231 

Valid   changes  in  remedies 232 

Special  charter  privileges  as  contracts 233 

Qualifications  of  this  doctrine 234 

Strict   construction   of  special   privileges 235 

Special  privileges   construed  non-transferable 237 

Certain    legislative    powers    unrestrainable    by    contract. 

Regulation   of  public  morals    238 

Same :    Public   health   and   safety 240 

Same:    Important  administrative  and  economic  interests.  .241 

Private  contracts  that  affect  the  public 243 

Reserved  power  of  states  to  repeal  corporate  charters 244 

Protection  of  property  acquired  before  repeal 245 


X  CONTENTS 

§246.  F.fTect  of  stnte  bankruptcy  laws 246 

5246a.  Foroipn  suit  on  contract 247 

§247.  Foreign  contracts   248 

§243.  Laws  increasing  the  obligation  of  contracts 248 

PART  III. 

THE  FEDERAL  GOVERNMENT. 

CHAPTER  XII. 

Federal  Powers  and  Their  Exercise. 

§249.    General  principles  of  construction:    Strict  versus  liberal.. 249 

§250.     Implied  powers    251 

§251.     Powers  implied  from  groups  of  other  powers 253 

§252.     Exclusive  and   concurrent  powers 254 

§253.     Purjioses  for  which  Federal  powers  may  be  exercised. ..  .255 

§254.     Prohibitions  upon  the  exercise  of  Federal  powers 257 

§255.    Resen-ed  powers  of  the  states 257 

CHAPTER  XIII. 
Territories,  Dependencies,  and  New  States. 

§256.     Cession  of  western  lands  to  United  States 259 

§257.     Implied  powers  to  annex  territory 259 

§258.     Federal  sovereignty  in  territories 260 

§259.     Application  in  territories  of  constitutional  prohibitions. ..  .261 
§260,     Spanish     cessions    of    1898 — Power    to    acquire     **  unin- 
corporated" territory   263 

§261.     Territorial   classification   of  Federal   jurisdiction 265 

§262.    Prohibitions    applicable    in    states    and    incorporated    ter- 
ritories     266 

§263.     Judiciary  article  applies  in  states  only 266 

§264.     Unincorporated   territory    267 

§265.     Foreign  territory  temporarily  occupied 270 

§266.     Foreign  consular  jurisdiction 271 

§267.     Admission  of  new  states  into  the  Union 271 

§268.     Can  new  states  be  admitted  with  powers  less  than  those 

of  other  states    272 

CILVPTER  XIV. 

Regulation  of  Commerce. 

§269.    Historical  outline  , 274 

SECTION    1. 

Duties  on  Imports,  Exports,  and  Tonnage. 
§270.    State  duties  on  imports  prohibited 274 


CONTENTS  ^ 

§271.  What  is  an  import 275 

§272.  What  is  a  tax  on  imports  276 

§273.  Development  of  the  "original  package"  doctrine 277 

§274.  Same:  How  large  must  an  "original  package"  be 278 

§275.  State  and  Federal  duties  on  exports  forbidden 280 

§276.  What  is  a  tax  on  exports 2^0 

§277.  State  inspection  laws .-. 281 

§278.  State  tonnage  duties  forbidden 282 

SECTION    2. 

Interstate  Commerce.  — General  Conceptions. 

§279.     Commerce   clause    283 

§280.     What   is   commerce    283 

§281.    When   is   commerce   interstate    285 

§282.     Beginning  and  ending  of  commercial  transit 286 

§283.     Transit   across   state    border   an   essential   part   of  trans- 
action     287 

§284.    Is  Federal  power  to  regulate  commerce  exclusive 287 

SECTION    3. 

State  Legislation  Discriminating  Against  Interstate  Commerce. 

§285.    Discriminatory  legislation  prohibited 289 

SECTION  4. 
State  Taxation  Affecting  Interstate  Commerce  Without  Discrimination. 

§286.     Taxes   upon    transportation 290 

§287.     Taxes    upon   sales    291 

§288.     Taxes  upon  property  engaged  in  interstate  commerce. ..  .292 
§289.     Taxes   as   conditions  precedent   to   engaging  in   interstate 

commerce    292 

§290.     Tolls  for  the  use  of  improvements 293 

§291.     Taxes  upon  franchises,  and  compensation  for  their  grant. 293 

§292.    Taxes  indirectly   affecting  commerce 295 

SECTION    5. 

State  Regulation  Affecting  Interstate  Commerce  Without  Discrimination. 

§293.    Regulation  of  transportation :    Rates 295 

§294.     Same :     Services   297 

§295.     Same :     Instruments,  agents,  liability,  etc 297 

§296.    Conditions  precedent   and  prohibitions  upon   engaging  in 

interstate    commerce    297 

§297.     Same :     T jquor  prohibition  cases 298 

§298.     Same :      Later    cases 300 

§299.    Regulations  indirectly  affecting  interstate  commerce 301 

Vol.  XII— 2— July  22. 


xii  CONTExNTS 

SECTION    0. 

Power  of  Congress  over  Interstate  and  Foreign  Commerce. 

§300.     Power  of   Conj^oss   complete   and   paramouut 302 

§201.    Congressional  power  to  enlarge  tlie  Held  of  state  action... 304 

SECTION    7, 
The  Maritime  Power. 

§302.    Extent    of   jurisdiction    305 

§303.     Artificial  waters    306 

§304.     Maritime  jurisdiclion  distinct  from  commercial  power.... 306 
§305.    Federal  jurisdiction  is  legislative  as  well  as  judicial 306 

CHAPTER  XV. 

Money   and  Banking. 

§306.     Constitutional    provisions 308 

§307.    BUls  of  credit 308 

§308.     Bank   notes 310 

§309.     Legal    tender 311 

§310.    Government  notes  as  legal   tender 312 

§311.     Same    (continued) 314 

§312.     Present  exclusive  Federal  control  of  money ,. .  .316 

CHAPTER  XVI. 

Various  Federal  Powers. 

§313.  Scope  of  chapter 317 

§314.  Federal   powers   of   taxation 317 

§315.  Limitations   on   taxation:     Uniformity. — Export  taxes.... 318 

§316.  Same:     Direct  taxes. 318 

§317.  Same:     Taxation  of  statp  governmental  functions 319 

§318.  Bankruptcy    320 

§319.  "Weights   and  measures 320 

§320.  Postal  powers    320 

§321.  Possible  extent  of  postal  powers 321 

§322.  Copyright  and  patents 321 

§323.  Maritime  offenses  and  offenses  again.st  the  law  of  nations.  .322 

§324.  Indians    323 

§325.  Aliens    324 

§326.  Federal   treaty   powers 326 

§327.  Same :     Another  view   327 

§328.  Federal  districts  within  a  state 328 

§329.  Military  powers :     Constitutional   provisions 329 

§330.  Same;     During  actual  hostilities « 330 


CONTENTS  xiii 

§331.    MLli<'ary  jurisdiction    332 

§332.     Same:      Controverted    questions 333 

§333.     Quartering  soldiers  in  private  houses 334 

CHAPTER  XVII. 

Intergovernmental  Relations. 
8334.    States  in  many  respects  treated  as  foreign  to  each  other.  .335 

SECTION    1. 
Interstate  Privileges  and  Immunities  of  Citizens. 

§335.     Scope  of  constitutional  provision 335 

§336.     Enumeration  of  rights  protected 336 

§337.     Illustrations   of  forbidden   discriminations 338 

§338.     Valid  discriminations :     Proprietary  rights 338 

§339.     Same:    Procedural  rights  as  affected  by  domieil 339 

§340.     Same:    Occupational  qualifications  as  affected  by  domieil.. 341 

SECTION    2. 
Other  Interstate  Relations. 
§341.    Interstate  recognition  of  public  acts,  records,  and  judicial 

proceedings     342 

§342.     Interstate  extradition  and  rendition 3i3 

§343.     Agreements  between  states   343 

SECTION    3. 

Relations  between  the  United  States  and  the  States. 

§344.     Nature  of  the  Union 344 

§345.    Participation  of  the  states  in  the  Federal  govemmnet 345 

§346.     State    interference    with    Federal    functions:      Conflicting 

laws    345 

§347.     Same:     State  taxation  of  Federal  agencies  or  property.  .346 
§348.     Same :    Taxation  of  property  of  Federal  agents. — Taxation 

remotely  affecting  Federal  functions 346 

§349.     State  interference  with  private  exercise  of  Federal  rights. 347 
§350.    Federal   interference   with   state   functions 348 

CHAPTER  XVIII. 

Jurisdiction  of  the  Federal  Courts. 

SECTION   1. 

In  General. 

§351.    Classification   of  Federal  judicial   powers 349 

§352.     Objects  of  the  various  judicial  powers 350 

§353.    Power  of  Congress  in  organization  of  Federal  courts 351 

§354.    Present  Federal  courts 352 


riv  CONTENTS 

§355.     Original   and   appellate  jurisdiction 353 

§356.     Exclusive    and    concurrent   jurisdiction 354 

§357.  Transfer  of  cases  from  state  to  Federal  courts:     Before 

trial    354 

§358.     Same:     After  trial 356 

§359.    Federal  questions 357 

§360.    Habeas  corpus  proceedings 358 

§361.     Suits    between    states 359 

§362.     Suits  between  states  and  the  United  States 360 

§363.     Diverse    citizenship    360 

§364.  Law    applied    by    Federal    courts:      No    Federal    common 

law    361 

§365.     Same:     Questions  of  local  common  law 362 

§366.  Same:    Questions  of  general  or  commercial  common  law.. 363 

§367.     Same :     State    statutes 364 

SECTION    2. 

Suits  Against  States. — Eleventh  Amendment. 

§£68.    Political  sovereignty  not  accountable  to  individuals 365 

§369.     Chisholm  v.  Georgia. — Eleventh  Amendment 366 

§370.    Repudiation  of  state  debts 366 

§371.     Suits  between  states  upon  bond  debts 367 

§372.     Suits     against     municipal     eoiporations. — Set-off     against 

state   368 

§373.     Suits  against  state  by  its  own  citizens 369 

§374.     Suits  against  state  officers:     (a)  For  illegal  official  act... 370 

§375.     Same:     (b)  To  prevent  illegal  official  act 371 

§376.     Same:      (c)  To    compel   official   act 372 

§377.     General   principle    involved 372 

§378.    Enjoining  suit  on  behalf  of  state 373 

Appendix  A.     United   States   Constitution    376 

Appendix  B.    Questions    393 


CONSTITUTIONAL  LAW  * 


BT 


JAMES  PARKER  HALL» 

A.  B.  (Cornell  University) 
ImI*.  B.  (Harvard  University) 

Professor  of  Law  and  Dean  of  Law  School,  University  of  Ohlcagfo 


PART  I. 
GENERAL  CONCEPTIONS. 

CHAPTER  L 

PRELIMINARY  TOPICS. 

Section  1.  Natube  of  Ameeioan  Constitutional  Law. 
§  1.  Modern  constitutional  government.  The  subject 
of  American  Constitutional  Law  deals  with  certain  large 
principles  intimately  connected  with  modem  theories  of 
political  self-government.  The  protection  of  the  indi- 
vidual in  his  personal,  property,  and  political  rights,  at 
the  same  time  that  order  is  maintained  and  the  welfare 


*  The  United  States  Constitution  is  printed  as  Appendix  A  in  this 
volume. 

t 


S  CONSTITUTIONAL  IjAW 

of  the  state  conserved,  is  the  aim  of  modem  constitutional 
government.  We  are  so  accustomed  to  the  acceptance  of 
these  doctrines  that  it  is  difficult  to  realize  how  new  they 
are  as  actual  working  principles  efficiently  controlling  gov- 
ernmental action.  It  is  only  a  little  over  three  hundred 
years  ago  that  Philip  II  of  Spain  condemned  to  death 
without  trial  all  of  the  inhabitants  of  the  Netherlands.  It 
is  only  two  hundred  years  ago  that  the  court  of  king's 
bench  in  England  solemnly  affirmed  the  right  of  the  king 
at  his  pleasure  to  dispense  with  any  penal  statute  passed 
by  Parliament.  In  legal  theory,  at  least,  the  property 
and  persons  of  the  vast  majority  of  the  governed  were  to  a 
considerable  extent  at  the  disposal  of  the  governing  ma- 
jority. As  a  matter  of  fact,  rulers  did  not  usually  deal 
with  their  subjects  with  an  outrageous  disregard  of  jus- 
tice, but  this  was  due  to  the  wisdom,  the  kindness,  or  the 
fear  of  the  rulers  and  not  to  their  obedience  to  any  word 
of  law  superior  to  their  wills.  The  divine  right  of  kings 
was  the  dogma  at  the  basis  of  political  theories  of  the 
state,  tempered  though  it  might  be  by  admissions  of  moral 
obligations  upon  rulers  to  govern  justly.  In  the  brief 
space  of  a  few  hundred  years  all  this  has  changed.  With 
very  few  exceptions,  every  government  that  now  makes 
any  pretension  to  modern  civilization  exercises  its  powers 
in  conformity  with  the  precepts  of  a  body  of  unwritten 
custom  or  written  law  designed  to  secure  the  individual 
from  oppression  at  the  hands  of  those  who  are  actually  in 
governing  positions,  or  even  from  the  oppression  of  a  ma- 
jority of  his  peers.  Indeed,  the  function  that  brings  Amer- 
ican constitutions  most  frequently  before  the  courts  is 


GENERAL  CONCEPTIONS  3 

that  of  protecting  the  rights  of  individuals  against  the  acts 
of  popular  legislatures. 

§  2.  What  is  a  constitution?  When  we  think  of  a  con- 
stitution in  America  we  naturally  conceive  a  written  in- 
strument formally  setting  forth  a  frame  of  government 
and  containing  a  variety  of  checks  upon  governmental 
action,  chiefly  upon  the  legislature.  It  may  seem  a  little 
strange  to  think  of  constitutions  existing  in  an  unwritten 
as  well  as  a  written  state.  Though  it  is  more  or  less  a 
matter  of  definition,  the  simplest  conception  of  a  consti- 
tution for  the  government  of  a  state  is  the  body  of  exist- 
ing precepts,  written  or  unwritten,  designed  to  control 
governmental  action  until  modified  in  some  authorized 
manner. 

§  3.  The  English  constitution  and  Parliament.  The 
best  example  of  a  country  with  an  unwritten  constitution 
is  England.  Large  volumes  have  been  written  about  the 
English  constitution,  but  so  far  as  that  constitution  is 
applicable  to  legislative  action  it  is  entirely  unwritten. 
The  English  Parliament  does  not  confiscate  private  prop- 
erty, or  condemn  men  to  death  without  trial,  or  even  im- 
pair the  obligation  of  existing  contracts.  Writers  on 
English  law  say  that  to  do  these  things  would  be  uncon- 
stitutional, meaning  thereby  contrary  to  the  great  body 
of  past  legislative  custom  and  usage,  which  forms  the 
standard  by  which  the  present  is  judged.  Yet  if  the  Eng- 
lish Parliament  were  to  do  any  of  these  things  they  would 
not  be  illegal,  though  they  might  be  unconstitutional. 
Parliament  is  absolutely  supreme  in  legal  theory,  and 


4  CONSTITUTIONAL  LAW 

whatovor  it  chooses  to  enact  is  legal,  is  a  law,  and  will  be 
euforced  as  such  by  the  English  courts. 

Really,  Parliament  has  a  double  function.  It  is  both 
the  law-making  and  the  constitution-making  power  of 
Great  Britain.  Thus,  at  present  we  say  it  is  unconstitu- 
tional for  Parliament  to  impair  the  obligation  of  con- 
tracts in  individual  instances — not  speaking  now  of  bank- 
ruptcy laws.  If  Parliament  chose  to  do  this  in  two  or 
three  instances  only,  we  should  still  say  such  action  was 
unconstitutional  but  that  there  was  no  way  of  enforcing 
the  constitution  against  the  will  of  Parliament.  If  such 
parliamentary  action  became  common,  we  should  then 
have  to  say  that  the  English  constitution  had  been  altered 
and  that  to  impair  the  obligations  of  private  contracts 
was  no  longer  unconstitutional  in  England.  That  is,  the 
English  constitution,  so  far  as  it  affects  legislative  ac- 
tion, is  purely  one  of  customary  obligation,  and  when  ad- 
herence to  any  part  of  it  is  no  longer  customary,  the  con- 
stitution has  simply  been  altered  by  the  authorized  Eng- 
lish method,  acts  of  Parliament  approved  by  the  crown. 

Where  the  English  constitution  touches  executive  ac- 
tion, it  is  partly  written.  Magna  Charta  is  an  instance 
of  this.  The  English  Bill  of  Rights  of  1689,  placing  cer- 
tain restrictions  on  the  acts  of  the  sovereign,  is  another. 
So  is  the  Act  of  Settlement  of  1701,  regulating  the  suc- 
cession to  the  crown  and  the  tenure  of  judges.  So  are  all 
the  various  acts  of  Parliament  somewhat  permanently 
regulating  the  exercise  of  executive  power  throughout 
the  British  Empire. 

§  4.    Differences  between  written  and  unwritten  con- 


GENERAL  CONCEPTIONS  5 

stitutions.  The  English  unwritten  constitution  is  really 
just  as  much  a  constitution  as  our  written  ones.  The 
great  difference  is  in  the  organ  by  which  constitutional 
changes  may  authorizedly  be  made.  In  England  this 
organ  is  Parliament.  In  the  American  states  it  is  usually 
a  constitutional  convention  whose  proceedings  must  gen- 
erally be  ratified  by  popular  vote.  For  the  United  States 
Constitution  it  is  the  joint  action  of  three-quarters  of  the 
states  acting  through  legislatures  or  conventions  (1).  On 
the  continent  of  Europe  it  is  often  the  legislative  bodies 
of  the  state  acting  together  by  a  two-thirds  or  three-quar- 
ters vote,  and  perhaps  also  requiring  the  assent  of  the 
executive  or  the  people. 

The  legal  effect  of  the  various  modes  of  amending 
American  constitutions  we  shall  consider  later.  Two  im- 
portant consequences  have  grown  out  of  the  differences 
between  English  and  American  constitutions.  One  is  that 
the  American  legislature  is  much  less  free  than  the  Eng- 
lish one.  The  other  is  that  the  American  judiciary  has 
been  made  the  guardian  of  the  constitution.  The  English 
courts  cannot  declare  an  act  of  Parliament  unconstitu- 
tional. An  American  court  does  this  constantly  with  the 
acts  of  American  legislatures.  It  is  this  latter  conse- 
quence that  gives  the  greatest  practical  importance  to 
the  study  of  American  constitutional  law. 

§  5.  Written  constitutions  in  America.  In  all  Amer- 
ican states  certain  fundamental  personal,  property,  and 
political  rights  are  secured  by  written  constitutions. 
These  constitutions  have  several  distinct  functions : 


(1)     Const.,  Art.  V. 


6  CONSTITUTIONAL  LAW 

First,  they  are  constructive.  They  provide  a  fomi  of 
jrovernnient,  divide  the  various  powers  into  convenient 
groups,  and  prescribe  the  proper  mode  of  their  exercise. 
Tliis  is  the  oldest  and  commonest  function  of  a 
constitution. 

Second,  they  are  prohibitive.  They  place  a  number  of 
restrictions  upon  legislative  and  executive  powers  and 
even  upon  the  power  of  the  individual  to  make  cer- 
tain contracts  or  use  his  property  in  certain  ways.  The 
most  important  of  these  prohibitions  are  designed  to  pro- 
tect the  individual  citizen  from  governmental  oppression, 
and  it  is  the  existence  of  these  prohibitions  in  modern 
constitutions  that  most  sharply  distinguishes  them  from 
the  governmental  instruments  of  antiquity.  As  com- 
pared with  the  total  bulk  of  constitutions,  these  supremely 
important  provisions  are  but  a  small  part.  In  the  con- 
stitution of  New  York  they  form  less  than  one-twentieth, 
and  of  South  Dakota  less  than  one-thirtieth.  They  secure 
personal  and  religious  liberty,  freedom  of  speech  and  of 
the  press,  rights  of  assemblage  and  petition,  equal  pro- 
tection of  the  laws,  compensation  for  property  taken  for 
public  use,  protection  to  persons  accused  of  crime,  im- 
munity from  unreasonable  searches  or  seizures,  and  due 
process  of  law  for  all  attempts  to  deprive  persons  of  life, 
libert>%  or  property. 

Third,  in  the  case  of  the  Federal  Constitution,  it  also 
divides  the  powers  of  government  between  the  states  and 
the  United  States,  and  provides  for  the  orderly  adminis- 
tration of  our  Federal  system. 

§  6.    Outline  of  American  constitutional  history  before 


GENERAL  CONCEPTIONS  7 

1789.  A  brief  summary  of  the  principal  facts  of  our  con- 
stitutional history,  before  the  present  Constitution,  may 
conveniently  be  inserted  here.  The  English  colonies  in 
America  were  settled  or  acquired  by  Great  Britain  be- 
tween 1607  (Virginia)  and  1732  (Georgia).  Most  of  them 
had  governors,  appointed  by  the  crown  or  colonial  pro- 
prietors, and  popular  assemblies  convened  under  the 
authority  of  crown  or  proprietors.  In  Rhode  Island  and 
Connecticut,  governor  and  legislature  were  chosen  by  the 
people.  The  part  taken  by  the  colonists  in  the  French 
and  Indian  war  (1754-63)  that  wrested  Canada  from 
France  gave  a  considerable  impetus  toward  colonial  unity, 
which  was  much  increased  by  the  unwise  and  irritating 
attempts  of  Parliament  to  tax  the  colonies  and  hamper 
their  foreign  trade.  The  Stamp  Act  congress  of  1765 
was  attended  by  representatives  from  most  of  the  colonies 
to  petition  against  this  legislation  and  make  a  declaration 
of  colonial  rights.  The  stamp  act  was  repealed  and  an 
import  duty  levied  on  goods  entering  the  colonies.  A 
feature  of  the  resistance  to  this  was  the  *' Boston  tea- 
party  ' '  at  which  some  cargoes  of  imported  tea  were  forci- 
bly thrown  into  the  harbor.  Parliament  replied  by  an  act 
closing  the  port  of  Boston  and  changing  the  charter  of 
Massachusetts.  In  1774  the  first  Continental  Congress 
met  and  adopted  resolutions  and  addresses  declaratory  of 
American  rights.  The  battle  of  Lexington  and  Concord 
followed  in  1775,  and  the  Revolution  began.  The  second 
Continental  Congress  met  shortly  after  and  assumed  the 
conduct  of  the  war.  Under  its  recommendations  ( §  7,  be- 
low) the  early  state  governments  were  formed,  and  it  con- 


8  CONSTITUTIONAL  LAW 

tinned  to  not  as  a  central  governing  body  of  dubious  au- 
thority in  all  but  military  and  diplomatic  matters,  until  the 
adoption  of  the  Articles  of  Confederation  in  1781,  which 
for  the  first  time  created  a  foniial  organic  union  between 
the  states.  The  Declaration  of  Independence,  adopted  by 
this  Congi'ess  in  1776,  was  its  principal  political  act,  and 
marks  the  legal  date  of  the  beginning  of  our  existence  as 
an  independent  nation.  Perhaps  the  most  important 
events  of  the  Confederation  were  the  cession  to  the  United 
States  of  the  lands  claimed  by  various  states  west  of  the 
Alleghanies  (§  256,  below),  and  the  adoption,  by  the  Con- 
gress of  the  Confederation,  of  the  Ordinance  of  1787  for 
the  government  of  the  Northwest  territory  thus  ceded, 
with  a  provision  excluding  slavery  from  it.  The  failure 
of  the  Confederation  and  the  adoption  of  the  Constitution 
are  related  in  §§  9-10,  below. 

Section  2.    Making  and  Changing  Amebic  an  Con- 
stitutions. 

§  7.  Earliest  American  state  constitutions.  Under  the 
American  system  of  government  written  constitutions 
play  so  important  a  part  that  a  brief  consideration  of  the 
methods  by  which  they  may  be  adopted  and  changed  is  de- 
sirable. 

During  the  first  eighteen  months  of  the  Revolutionary 
war  the  governments  of  most  of  the  revolting  colonies 
were  conducted  by  provincial  conventions  or  congresses 
in  each  colony,  made  up  of  delegates  chosen  in  various 
irregular  ways;  and  their  acts  and  recommendations, 
under  stress  of  war,  were  very  generally  respected  and 


GENERAL  CONCEPTIONS  9 

obeyed  by  the  Revolutionary  party.  Connecticut  and 
Rhode  Island,  under  their  colonial  charters,  had  popular 
anti-British  assemblies  that  continued  to  administer  their 
governments.  As  the  expectation  of  an  early  peace  with 
England  diminished,  the  Continental  Congress,  in  re- 
sponse to  several  requests,  advised  the  informal  govern- 
ing bodies  in  each  colony  to  call  a  full  representation  of 
the  people,  in  order  to  form  a  more  permanent  frame  of 
government  during  the  continuance  of  the  war.  Be- 
ginning with  New  Hampshire  in  1776,  brief  constitutions 
were  promulgated  by  the  provincial  congresses,  or  by  con- 
ventions called  for  this  purpose,  without  any  submission 
of  them  to  the  people,  in  all  of  the  colonies  except  Con- 
necticut, Rhode  Island,  and  Massachusetts.  Connecticut 
and  Rhode  Island  continued  under  their  colonial  charters, 
but  events  in  Massachusetts  took  a  different  course. 

§  8.  Constitution  of  Massachusetts.  In  June,  1775, 
acting  upon  the  advice  of  the  Continental  Congress,  the 
provincial  convention  of  Massachusetts  wrote  letters  to 
the  towns  in  the  colony  requesting  them  to  choose  repre- 
sentatives to  form  an  assembly.  The  assembly  when 
elected  chose  a  council  and  the  two  of  these  together  con- 
stituted the  Massachusetts  general  court  or  legislature. 
In  1778  this  body  prepared  a  constitution  that  was  sub- 
mitted to  the  people  and  rejected.  The  year  following, 
the  people  voted  that  a  new  constitution  should  be  drafted 
by  a  convention  especially  called  for  this  purpose.  The 
legislature  made  provision  for  the  election  of  delegates  to 
such  a  convention  by  the  votes  of  all  resident  freemen, 
twenty-one  years  old.    The  convention  met  in  September, 


10  CONSTITUTIONAL  LAW 

1779.  aud  in  ^[arch,  1780,  the  new  constitution  was  laid 
before  the  people,  to  be  approved  by  two-thirds  of  the 
male  inhabitants  of  the  age  of  twenty-one,  voting.  Over 
two-thirds  approved,  and  the  convention,  having  re- 
assembled, declared  the  constitution  established  and  re- 
solved that  it  should  take  effect  the  October  following. 
It  is  notable  that  although  this  constitution  contained  a 
provision  limiting  the  suffrage  under  it  to  persons  having 
a  specified  property  qualification,  yet  all  freemen  over 
the  age  of  twenty-one  were  empowered  to  vote  upon  its 
adoption.  It  was  the  first  American  constitution  adopted 
by  popular  vote. 

Of  all  the  constitutions  originally  formed  by  the  first 
American  states  that  of  Massachusetts  alone  is  in  force 
today.  It  has  been  frequently  amended,  but  all  attempts 
to  substitute  a  new  constitution  for  it  have  failed.  All 
other  states,  except  those  most  recently  admitted  to  the 
Union,  have  had  more  than  one  constitution.  Texas  has 
had  seven  altogether,  and  Kansas  had  three  in  three  years, 

§  9.  The  Articles  of  Confederation.  The  Articles  of 
Confederation,  framed  by  the  second  Continental  Con- 
gress, were  presented  to  the  legislatures  of  the  various 
states  in  1778,  and  were  ratified  by  the  last  of  them  in 
March,  1781.  Article  VIII  provided:  **The  articles  of 
this  Confederation  shall  be  inviolably  observed  by  every 
state,  and  the  Union  shall  be  perpetual;  nor  shall  any 
alterations  at  any  time  hereafter  be  made  in  any  of  them, 
unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States  and  be  afterwards  confirmed  by  the  legis- 
latures of  every  state.'* 


GENERAL  CONCEPTIONS  11 

The  government  of  the  Confederation  speedily  failed 
for  want  of  coercive  authority  to  execute  its  powers.  It 
could  neither  tax,  regulate  trade,  carry  out  its  inter- 
national obligations,  nor  keep  internal  peace,  but  was 
obliged  to  rely  upon  recommendations  to  the  states  for 
carrying  out  these  measures.  The  urgency  of  war  once 
removed,  natural  differences  of  opinion  among  the  states 
rendered  united  action  impossible,  and  the  central  gov- 
ernment fell  to  pieces  with  unchecked  rapidity.  Various 
efforts  to  amend  the  Articles  of  Confederation  so  as  to 
give  the  Congress  at  least  some  powers  of  taxation  were 
defeated  by  the  requirement  of  unanimity  among  the 
states. 

§  10.    Adoption  of  the  United  States  Constitution.    In 

1786  Virginia  called  a  meeting  of  commissioners  from  all 
of  the  states  to  consider  the  adoption  of  such  an  act  as 
would  enable  Congress  to  provide  for  a  uniform  system  in 
their  commercial  relations.  Commissioners  from  five 
states  met  at  Annapolis  in  September,  1786,  in  conse- 
quence of  this  call.  They  recommended  a  convention  to 
meet  at  Philadelphia  the  next  May  to  devise  provisions  to 
render  the  Constitution  of  the  Federal  government  ade- 
!  quate  to  the  Union,  and  their  report  was  sent  to  Congress 
*  and  to  the  states.  In  February,  1787,  Congress  passed  a 
resolution  recommending  such  a  convention  ' '  for  the  pur- 
pose of  revising  the  Articles  of  Confederation  and  re- 
porting to  Congress  and  the  several  legislatures  such 
t  alterations  and  provisions  therein  as  shall,  when  agreed 
to  in  Congress  and  confirmed  by  the  states,  render  the 


12  CONSTITUTIONAL  LAW 

Federal  Constitution  adequate  to  the  exigencies  of  the 
government  and  preservation  of  the  Union." 

Representatives  of  all  of  the  states  except  Rhode  Island 
attended  the  convention,  and  on  September  17,  1787, 
adopted  the  Constitution.  The  convention  directed  the 
Constitution  to  be  laid  before  Congress,  and  recommended 
that  it  should  be  afterward  submitted  to  a  convention  of 
delegates  chosen  in  each  state  by  the  people  under  the 
recommendation  of  its  legislature.  Article  VII  of  the 
proposed  Constitution  provided  that  the  ratification  of  the 
conventions  of  nine  of  the  states  should  be  sufficient  for 
the  establishment  of  the  Constitution  between  the  states 
ratifying.  The  convention  recommended  to  Congress 
that,  as  soon  as  nine  of  the  states  had  ratified,  Con- 
gress should  fix  a  time  for  the  appointment  of  electors, 
a  time  when  they  should  vote  for  president,  and  a  time 
and  place  for  commencing  proceedings  under  the  Con- 
stitution. 

It  will  be  noticed  that  the  new  Constitution  provided 
that  it  should  become  effective  as  soon  as  ratified  by  nine 
ttates,  while  the  Articles  of  Confederation  provided  that 
they  should  not  be  changed  except  by  unanimous  consent 
of  the  states.  Eleven  states  at  first  ratified  the  Constitu- 
tion, and  the  new  government  went  into  effect  between 
them  March  4,  1789.  North  Carolina  ratified  in  Novem- 
ber of  that  year,  and  Rhode  Island  in  May,  1790. 

§  11.  Modes  of  amending  constitutions.  The  constitu- 
tions of  our  states  are  amended  or  wholly  remade  with 
great  frequency,  and  upon  six  different  occasions  the 
Federal  Constitution  has  been  amended.    Questions  fre- 


GENERAL  CONCEPTIONS  18 

quently  have  arisen  respecting  the  proper  mode  of  amend- 
ing constitutions  and  these  may  conveniently  be  discussed 
under  several  heads:  1.  The  previous  constitution  may 
contain  no  provisions  regarding  its  amendment.  2.  A 
mode  of  amendment  may  be  provided,  but  may  not  be 
made  expressly  exclusive  of  other  modes.  3.  An  exclusive 
mode  of  amendment  may  be  expressly  provided. 

§  12.  Same:  Where  constitution  contains  no  express 
provision.  The  first  constitutions  of  most  of  the  thirteen 
original  states  contamed  no  express  provisions  at  all  con- 
cerning their  amendment.  That  of  Massachusetts  pro- 
vided that  in  1795  the  people  should  vote  upon  the  ex- 
pediency of  revising  the  constitution,  and  that  if  two- 
thirds  voted  in  favor  of  this  a  new  convention  should  be 
called.  Nothing  was  done  in  1795,  but  1820  the  legis- 
lature secured  an  affirmative  vote  of  the  people  in 
favor  of  a  convention  for  revising  the  constitution. 
The  convention  was  held  and  various  amendments  pro- 
posed by  it  were  adopted,  among  them  an  amendment 
providing  an  orderly  method  for  future  amendments. 
This  early  incident  is  typical  of  the  usual  American  prac- 
tice. "Where  a  constitution  contains  no  express  provision 
for  its  amendment,  the  legislature  may  call  a  convention 
of  delegates  chosen  by  the  people,  the  call  being  made 
directly  by  the  legislature,  or  in  consequence  of  a  previous 
vote  of  the  people  authorizing  the  legislature  to  do  so. 
The  convention  so  called  may  propose  changes  in  the  con- 
stitution and  submit  them  to  the  people,  and  when  ratified 
by  the  vote  of  the  latter  the  constitution  is  changed  ac- 
cordingiy. 

Vol.  XII— S 


14  CONSTITUTIONAL  LAW 

!;  13.  Same:  Where  constitution  provides  a  non-ex- 
clusive mode  of  amendment.  Where  a  state  constitution 
expressly  provides  that  it  shall  be  amended  by  calling  a 
convention  and  submitting  amendments  to  the  people, 
doubtless  there  is  no  implied  power  to  amend  in  any  other 
way.  This  method,  however,  though  well  adapted  for  a 
general  revision  of  a  constitution,  is  expensive  and  cum- 
bersome for  dealing  with  isolated  specific  amendments. 
Most  of  our  constitutions,  therefore,  provide  for  their 
amendment  by  the  submission  to  the  people  of  proposals 
first  passed  by  the  legislature,  or  by  two  successive  legis- 
latures. It  is  generally  held  that  this  permission  to 
amend  in  the  legislative  mode  does  not  impliedly  deny 
authority  to  amend  by  the  agency  of  a  convention  called 
as  set  forth  in  §  12,  above.  This  original  and  typical 
method  may  always  be  employed  unless  expressly  for- 
bidden. 

§  14.  Same:  Exclusive  mode  of  amendment  expressly 
provided.  If  a  constitution  expressly  provides  that  it 
shall  be  amended  by  a  certain  method  or  methods,  only, 
there  can  be  no  legal  warrant  for  employing  a  different 
mode,  and  acts  done  under  the  latter  do  not  acquire  the 
force  of  law  except  as  the  fruit  of  an  accomplished  revo- 
lution against  the  prior  form  of  government. 

§  15.  Peaceful  revolutions.  In  a  few  instances  the  pro- 
cedure mentioned  as  illegal  in  §  14,  above,  has  been  pur- 
sued, and  a  new  constitution  or  constitutional  amendments 
have  been  adopted  thereunder  and  acquiesced  in  by  the 
people  and  departments  of  government.  This  must  be 
regarded  in  the  light  of  a  peaceful  revolution,  akin  to  that 


GENERAL  CONCEPTIONS  15 

by  whicli  the  old  Confederation  was  displaced,  in  direct 
denial  of  its  provisions,  by  the  new  Constitution  in  1788 
(§10,  above). 

§  16.  Amendment  of  Federal  Constitution.  The  Unit- 
ed States  Constitution  contains  in  Article  V  an  express 
provision  for  proposing  amendments  by  a  two-thirds  vote 
of  each  house  of  Congress,  or  by  a  convention  called  by 
Congress  upon  the  application  of  the  legislatures  of  two- 
thirds  of  the  states.  The  former  method  has  been  uni- 
formly pursued  heretofore.  Perhaps  Congress  could  not 
call  a  convention  upon  its  own  motion,  in  the  ordinary 
American  method  (§  12,  above),  even  though  this  is  not 
expressly  forbidden  (§  13,  above) ;  for  Congress  has  only 
the  powers  delegated  to  it  by  the  Constitution,  not  the 
general  residuary  powers  of  a  state  legislature  (§§  24-27, 
249-51,  below),  and  it  would  be  difficult  to  show  that  a 
power  of  this  nature  was  fairly  to  be  implied  from  the 
character  of  the  national  government.  The  principal 
practical  question  that  has  arisen  over  the  procedure  of 
amending  the  Federal  Constitution  is  whether  a  state  may 
withdraw  a  ratification  of  an  amendment  once  given,  if 
the  retraction  takes  place  before  the  amendment  has  been 
adopted  hj  the  requisite  number  of  states  to  make  it  part 
of  the  Constitution.  This  occurred  with  respect  to  both 
the  Fourteenth  and  Fifteenth  Amendments,  and  Congress 
by  resolution  declared  the  attempted  with  rawal  ineffec- 
tive (la). 


(la)  The  topics  of  §§  11-16,  above,  are  fully  discussed  in  Jameson  on 
Constitutional   Conventions    C4tli   ed.),  sees.  563-S5. 


16  CONSTITUTIONAL  LAW 

Section  .'>.     Separation  of  Departments  of  Go\'ern- 

MENT. 

§  17.  General  American  doctrine.  The  prevalent 
American  doctrine  is  that  the  legislative,  executive,  and 
judicial  departments  of  government  should  be  separated 
so  far  as  is  practicable,  and  that  their  respective  powers 
should  be  exercised  by  different  men  or  groups  of  men. 
The  Federal  Constitution  does  not  require  this  of  the 
state  governments  (§  138),  but  all  state  constitutions  re- 
quire it  to  varying  extents.  A  few  illustrations  will  make 
clear  how  this  works  in  practice. 

§  18.  Judicial  powers  cannot  be  exercised  by  legis- 
lative and  administrative  bodies.  In  an  early  New  Hamp- 
shire case  (2)  a  law  suit  had  been  decided  against  one 
Merrill,  and  the  court  had  refused  his  motion  for  a  new 
trial  and  rendered  judgment  against  him.  The  legislature 
on  Merrill's  petition  passed  an  act  granting  him  a  new 
trial  in  the  case.  The  New  Hampshire  court  decided  this 
act  to  be  unconstitutional  and  void,  as  an  attempted  exer- 
cise of  judicial  power  by  the  legislature,  saying:  ''No 
particular  definition  of  judicial  powers  is  given  in  the 
constitution ;  and  considering  the  general  nature  of  the  in- 
strument none  was  to  be  expected  but  'powers  judicial,' 
'judiciary  powers,'  and  'judicatories'  are  all  phrases 
used  in  the  constitution,  and  though  not  particularly  de- 
fined are  still  so  used  to  designate  with  clearness  that  de- 
partment of  th:  government  which  it  was  intended  should 
interpretate  and  administer  the  laws.  On  general  prin- 
ciples, therefore,  those  inquiries,  deliberations,  orders, 


(2)     Merrill  v.  Sherburne,  1  N.  H.  199. 


GENERAL  CONCEPTIONS  17 

and  decrees,  which  are  peculiar  to  such  a  department 
must  in  their  nature  be  judicial  acts.  Nor  can  they  be 
both  judicial  and  legislative,  because  a  marked  difference 
exists  between  the  employment  of  judicial  and  legislative 
tribunals. 

' '  The  former  decide  upon  the  legality  of  claims  and  con- 
duct ;  the  latter  make  rules  upon  which,  in  connection  with 
the  Constitution,  these  decisions  should  be  founded.  It  is 
the  province  of  the  judges  to  determine  what  is  the  law 
upon  existing  cases.  In  fine  the  law  is  applied  by  the  one 
and  made  by  the  other. ' ' 

§  19.  Same:  Further  illustrations.  In  Kansas  the 
legislature  created  a  so-called  court  of  visitation  which 
was  given  power  to  regulate  public  service  companies,  to 
determine  the  reasonableness  of  the  regulations  thus 
made,  and  then  to  enforce  them.  The  Federal  circuit 
court  held  that  this  combination  of  judicial  with  legisla- 
tive and  administrative  powers  was  forbidden  by  the  con- 
stitution of  Kansas,  which  provided  for  separate  execu- 
tive, legislative,  and  judicial  departments,  though  it  did 
not  expressly  forbid  the  powers  of  one  to  be  exercised  by 
the  others.  The  court  said:  ''That,  in  a  broad  sense, 
powers  of  one  of  these  departments  shall  not  be  conferred 
upon  either  of  the  others  is  not  only  within  the  true  spirit 
of  these  provisions,  but  also  substantially  within  the  letter 
thereof;  and  the  addition  thereto  of  an  express  prohibi- 
tory declaration,  such  as  is  contained  in  the  constitutions 
of  some  of  the  states,  that  the  powers  of  one  departmenj^ 
shall  not  be  exercised  by  another,  would  add  very  little  to 


IS  CONSTITUTIONAL  LAW 

tln'ir  efTect,  so  far  as  concerns  the  question  under  con- 
sideration. The  universal  doctrine  of  American  liberty 
under  written  constitutions  requires  the  distribution  of 
all  the  powers  of  government  among  three  departments — 
legislative,  judicial,  and  executive — and  that  each,  within 
its  appropriate  sphere,  be  supreme,  coordinate  with,  and 
independent  of  both  the  others"  (3). 

Nor  can  an  administrative  body  like  the  Interstate 
Commerce  Commission  be  given  power  to  compel  obedi- 
ence to  its  orders  by  a  judgment  of  fine  or  imprisonment. 
Such  obedience,  under  the  Constitution  of  the  United 
States,  can  be  compelled  only  by  a  competent  judicial 
tribunal  having  jurisdiction  of  the  case  (4). 

;i  20.  Non-judicial  powers  cannot  be  conferred  on 
courts.  On  the  other  hand,  courts  cannot  be  required  to 
exercise  non-judicial  powers.  A  Connecticut  statute  pro- 
vides that  any  street  railway  company  might  apply  to  the 
superior  court  to  approve  and  adopt  a  location  for  its 
tracks  with  such  regulations  regarding  streets,  cars,  con- 
struction, and  motive  power  as  the  court  might  prescribe. 
The  supreme  court  of  Connecticut  held  this  not  to  be  the 
exercise  of  judicial  power,  and  therefore  denied  that  it 
could  be  conferred  upon  a  court.  Instead,  it  was  a  proper 
matter  for  legislative  and  administrative  action  (5).  But 
if  the  question  left  to  the  court  is  whether  certain  definite 
circumstances  exist  or  conditions  have  been  fulfilled  upon 


f3)     Western  Union  Tel.  Co.  v.  Myatt,  98  Fed.  335. 

(4)  Interstate  Commerce  Commission  v.  Brimson,  154  U,  S.  447. 

(5)  Norwalk  Street  Railroad's  Appeal,  69  Conn.  576. 


GENERAL  CONCEPTIONS  19 

which  a  license  may  be  granted  or  a  town  incorporated, 
it  is  generally  held  a  proper  matter  for  judicial  determi- 
nation (6). 

The  courts  cannot  be  required  to  decide  questions  or 
decisions  which  will  later  be  subject  to  revision  or  review 
by  other  departments  of  the  government.  The  final  find- 
ing of  a  court,  when  not  appealable  to  another  court,  is 
not  a  judicial  determination  unless  it  is  enforceable  by 
some  process  or  is  made  by  statute  the  final  or  indisput- 
able basis  of  action  by  other  departments  of  govern- 
ment (7). 

Of  the  latter  nature  are  actions  against  itself  permitted 
by  the  state  or  the  United  States,  where  it  is  made  the 
duty  of  the  government  sued  to  pay  any  judgment  that 
may  be  rendered  against  it. 

1 21.    Inherent  powers  of  departments  of  government. 

As  a  corollary  to  the  doctrine  of  the  separation  of  powers 
in  American  governments,  each  department  has  certain 
inherent  powers  of  which  it  cannot  be  deprived  by  the 
action  of  the  other  departments,  even  though  the  latter 
do  not  attempt  to  exercise  them.  Eoughly  speaking  they 
are  such  powers  as  are  necessary  to  maintain  the  effective 
independence  of  the  departments  in  the  discharge  of  their 
appropriate  duties.  For  instance,  a  Virginia  statute  at- 
tempted to  deprive  the  courts  created  by  the  Virginia  con- 


(6)  McCrea  v.  Roberts,  89  Md.  238;   Forsythe  v.  Hammond,  142 
Ind.  505. 

(7)  In  re  Sanborn,  148  U.  S.  222. 


20  CONSTITUTIOiNAL  LAW 

stitution  of  their  power  to  punish  contempts  summarily, 
and  to  substitute  a  jury  trial  for  the  action  of  the  court 
itself.  This  was  held  unconstitutional,  and  the  court 
stated  its  conclusions :  '  *  That  in  the  courts  created  by  the 
constitution,  there  is  an  inherent  power  of  self-defense 
and  self-preservation;  that  this  power  can  be  regulated 
but  cannot  be  destroyed,  or  so  far  diminished  as  to  be 
rendered  ineffectual  by  legislative  enactment ;  that  it  is  a 
power  necessarily  resident  in  and  to  be  exercised  by  the 
court  itself,  and  that  the  vice  of  an  act  which  seeks  to  de- 
prive the  court  of  this  inherent  power  is  not  cured  by  pro- 
viding for  its  exercise  by  jury ;  that  while  the  legislature 
has  the  power  to  regulate  the  jurisdiction  of  the  courts, 
it  cannot  destroy,  while  it  may  confine  within  reasonable 
bounds,  the  authority  necessary  to  the  exercise  of  the 
jurisdiction  conferred"  (8). 

Similarly  the  United  States  Supreme  Court  has  said: 
"In  order  that  the  court  may  compel  obedience  to  its 
orders  it  must  have  the  right  to  inquire  whether  there  has 
been  any  disobedience  thereof.  To  submit  the  question 
of  disobedience  to  another  tribunal,  be  it  jury  or  another 
court,  would  be  to  deprive  the  proceeding  of  one-half  its 
efficiency"  (9). 

There  are  conflicting  views  as  to  whether  the  independ- 
ence of  the  courts  requires  them  to  control  admissions  to 
the  bar.  In  Illinois  and  Pennsylvania  a  legislature  may 
not  compel  the  admission  to  the  bar  of  persons  who  have 
not  complied  with  the  requirements  demanded  by  the 


(8)  Carter's  Case,  96  Va.  791,  816. 

(9)  In  re  Debs,  158  U.  S.  564,  595. 


GENERAL  CONCEPTIONS  21 

courts  (10).    The  contrary  view  is  taken  in  New  York 
and  North  Carolina  (11). 

§  22.  Limitations  of  general  doctrine.  The  doctrine  of 
the  separation  of  powers  of  government  is  of  course  not 
susceptible  of  rigorous  application.  Each  department, 
as  a  matter  of  convenience  and  necessity,  or  to  protect  its 
own  independence,  must  in  a  certain  measure  exercise 
powers  of  a  character  that  strictly  belongs  to  another  de- 
partment. The  legislature,  for  instance,  must  often  make 
investigations  to  ascertain  the  facts  preliminary  to  legis- 
lation, and  for  this  purpose  must  summon  witnesses,  ex- 
amine them,  and  punish  their  refusal  to  answer.  These 
proceedings,  though  judicial  in  their  nature,  are  necessary 
incidents  of  a  proper  exercise  of  legislative  power,  and  so 
may  be  conducted  by  a  legislature  (12).  Likewise,  both 
the  executive  and  courts  may  make  rules  concerning  their 
procedure,  which  are  legislative  in  character,  but  yet  prop- 
erly incidental  to  executive  and  judicial  duties. 

§  23.  Same:  Appointment  of  officers.  Taxation. 
Some  functions,  like  the  appointment  of  officers,  do  not 
so  distinctly  belong  to  one  department  that  they  may  not 
be  exercised  by  another,  and  in  such  a  case  the  power  of 
appointment  may  be  conferred  upon  either  the  executive 
or  the  courts,  or  be  exercised  by  the  legislature  itself,  at 
its  pleasure  (13).     The  Federal  Constitution  expressly 


(10)  In  re  Day,  181  111.  73 ;  In  re  Splaue,  123  Pa.  527. 

(11)  Matter  of  Cooper,  22  N.  Y.  67:   Ee  Applicants  for  License, 
143  N.  C.  1. 

(12)  People  V.  Keeler,  99  N.  Y.  463. 

(13)  Fox  V.  McDonald,  101  Ala.  51. 


22  CONSTITUTIONAL  LAW 

provides  that  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the 
President  alone,  in  the  courts  of  law  or  in  the  heads  of  de- 
partments (U).  In  a  number  of  the  states  an  early  prac- 
tice of  giving  inferior  courts  the  power  of  levying  local 
taxes  and  assessing  property  therefor  has  been  continued 
( 15 ) .  It  has  been  said :  ' '  The  ascertainment  of  values  of 
property  is  strictly  judicial,  and  in  governments  per- 
fectly separated  into  the  three  distinct  departments  of 
legislative,  executive,  and  judicial  would  of  necessity  be- 
long to  the  judicial.  It  has,  however,  been  considered  a 
necessar}'  adjunct  of  the  strictly  legislative  power  of  levy- 
ing taxes."  This  power,  then,  in  connection  with  an 
assessment,  may  properly  be  conferred  upon  the  judiciary 
(16).  Some  states,  however,  wholly  deny  the  validity  of 
such  practices  (17). 

Section  4.     The  States  and  the  United  States 

§  24.  General  theory  of  state  powers.  When  the  Brit- 
ish colonies  in  America  freed  themselves  from  the  British 
government  by  the  successful  Revolution  of  1774-81,  the 
newly  created  American  states  succeeded  to  the  powers 
of  the  British  government;  and  to  their  legislatures  de- 
scended the  powers  of  the  British  Parliament. 

"The  accepted  theory  upon  this  subject  appears  to  be 


(14)  Const.  Art.  2,  sec.  2,  §  2. 

(15)  State  V.   Gazley,   5   Ohio,   14;    Ballard  v.   Thomas,   19   Gratt 
(Va.)  14. 

(16)  Wheeling  Property  C^o.  v.  Paul,  39  W.  Va.  142. 

fl7)     Munday  v.   Rah  way,  43   N.   J.   L.  338;    Auditor  v.   Railroad, 
6  Kan.  600. 


GENERAL  CONCEPTIONS  23 

this:  In  every  sovereign  state  there  resides  an  absolute 
and  uncontrolled  power  of  legislation.  In  Great  Britain 
this  complete  power  rests  in  the  Parliament;  in  the  Amer- 
ican states  it  resides  in  the  people  themselves  as  an  or- 
ganized body  politic.  But  the  people,  by  creating  the  Con- 
stitution of  the  United  States,  have  delegated  this  power 
as  to  certain  subjects,  and  under  certain  restrictions,  to 
the  Congress  of  the  Union ;  and  that  portion  they  cannot 
resume,  except  as  it  may  be  done  through  amendment  of 
the  national  Constitution.  For  the  exercise  of  legislative 
power,  subject  to  this  limitation,  they  create,  by  their 
state  constitution,  a  legislative  department  upon  which 
they  confer  it ;  and  granting  it  in  general  terms,  they  must 
be  understood  to  grant  the  whole  legislative  power  which 
they  possess,  except  so  far  as  at  the  same  time  they  saw 
fit  to  impose  restrictions.  While,  therefore,  the  Parlia- 
ment of  Britain  possesses  completely  the  absolute  and  un- 
controlled power  of  legislation,  the  legislative  bodies  of 
the  American  states  possess  the  same  power,  except,  first, 
as  it  may  have  been  limited  by  the  Constitution  of  the 
United  States;  and,  second,  as  it  may  have  been  limited 
by  the  constitution  of  the  state.  A  legislative  act,  can- 
not, therefore,  be  declared  void,  unless  its  conflict  with 
one  of  these  two  instruments  can  be  pointed  out"  (18). 

§  25.  Powers  of  state  governments  before  1789.  The 
Confederation.  After  the  Declaration  of  Independence  in 
1776  all  of  the  American  states,  except  Connecticut  and 
Rhode  Island,  adopted  constitutions  providing  a  frame 


(18)     Cooley,   Const.    I.iru.    241    (7   ed.). 


24  CONSTITUTIONAL  LAW 

of  government,  distributing  its  powers,  and  enjoining 
certain  limitations  upon  their  use.  Connecticut  and 
Khode  Island  continued  under  their  colonial  charters, 
Connecticut  expressly  retaining  its  charter  as  a  constitu- 
tion with  a  few  brief  additional  prohibitions,  and  Rhode 
Island  going  on  without  any  express  readoption  of  its 
charter.  Connecticut  did  not  adopt  another  constitution 
until  1818,  nor  Rhode  Island  until  1842. 

These  early  American  constitutions  contained  bills  of 
rights  that  in  general  prohibited  to  the  political  depart- 
ments of  the  state  the  exercise  of  powers  already  found 
by  English  experience  and  by  their  present  quarrel  with 
Great  Britain  to  be  fraught  with  danger  to  individual 
rights.  The  principal  ones  of  these  are  enumerated  in 
§  5,  above.  Subject  to  these  or  similar  restrictions  and  to 
the  few  restrictions  upon  the  powers  of  the  state  con- 
tained in  the  Articles  of  Confederation,  adopted  in  1781, 
the  early  state  governments  kept  the  entire  remaining 
field  of  legislation.  The  prohibitions  upon  the  power  of 
the  states  in  the  Articles  of  Confederation  chiefly  limited 
their  power  to  enter  into  political  relations  either  with 
foreign  countries  or  with  each  other,  save  with  the  consent 
of  Congress ;  and  secured  to  the  people  of  each  state  rights 
of  intercourse  with  other  states  without  discrimination. 
Provision  was  made  for  the  interstate  extradition  of  crim- 
inals, the  interstate  recognition  of  judicial  proceedings, 
and  the  settlement  of  interstate  boundary  disputes;  and 
Congress  was  given  control  of  interstate  post  offices, 
Indian  affairs,  the  alloy  and  value  of  coin,  and  the  stand- 
ards of  weights  and  measures. 


GENERAL  CONCEPTIONS  25 

The  Confederation  was  virtually  a  league  between  the 
states,  and  the  powers  given  to  it  were  in  the  main  de- 
pendent for  their  enforcement  upon  the  law  of  the  states 
themselves.  It  could  not  effectively  act  upon  individuals 
in  the  states. 

§  26.  Division  of  powers  between  state  and  nation  ef- 
fected by  Federal  Constitution.  The  failure  of  the  Con- 
federation and  the  adoption  of  the  Constitution  created 
an  entirely  new  political  situation.  The  theory  of  the 
division  of  powers  between  the  new  national  government 
and  the  older  state  governments  has  been  judicially  stated 
with  accuracy  as  follows  : 

**In  1789,  the  Constitution  of  the  United  States,  having 
been  adopted  by  the  required  number  of  states  .  .  .  went 
into  operation,  and  became  the  law  of  the  land.  This 
system  was  founded  upon  an  entirely  different  principle 
from  that  of  the  Confederation.  Instead  of  a  league 
among  sovereign  states,  it  was  a  government  formed  by 
the  people,  and,  to  the  extent  of  the  enumerated  subjects, 
the  jurisdiction  of  which  was  confided  to  and  vested  in 
the  general  government,  acting  directly  upon  the  people. 
*We  the  people,'  are  the  authors  and  constituents;  and 
'in  order  to  form  a  more  perfect  union'  was  the  declared 
purpose  of  the  constitution  of  a  general  government. 

''It  was  a  bold,  wise,  and  successful  attempt  to  place  the 
people  under  two  distinct  governments,  each  sovereign  and 
independent  within  its  own  sphere  of  action,  and  dividing 
the  jurisdiction  between  them,  not  by  territorial  limits 
and  not  by  the  relation  of  superior  and  subordinate,  but 
classifying  the  subjects  of  government  and  designating 


26  CONSTITUTIONAL  LAW 

those  over  which  each  has  entire  aud  independent  juris- 
diction. This  object  the  Constitution  of  the  United  States 
proposed  to  accomplish  by  a  specific  enumeration  of  those 
subjects  of  general  concern,  in  which  all  have  a  general 
interest,  and  to  the  defense  and  protection  of  which  the 
undivided  force  of  all  the  states  could  be  brought 
promptly  and  directly  to  bear. 

"Some  of  these  were  our  relations  with  foreign  powers 
— war  and  peace,  treaties,  foreign  commerce  and  com- 
merce amongst  the  several  states,  with  others  specifically 
enumerated ;  leaving  to  the  several  states  their  full  juris- 
diction over  rights  of  person  and  property,  and,  in  fact, 
over  all  other  subjects  of  legislation,  not  thus  vested  in 
the  general  government.  All  powers  of  government, 
therefore,  legislative,  executive,  and  judicial,  necessary 
to  the  full  and  entire  administration  of  government  over 
these  enumerated  subjects,  and  all  powers  necessarily 
incident  thereto,  are  vested  in  the  general  government; 
and  all  other  powers,  expressly  as  well  as  by  implication, 
are  reserved  to  the  states"  (19). 

§  27.  Nature  of  the  Federal  Government:  Of  limited 
powers.  From  the  nature  of  the  Constitution  of  the 
United  States,  there  result  two  great  constitutional  prin- 
ciples. The  first  one  is  that  the  United  States  is  strictly 
a  government  of  limited  powers.  The  rule  for  construing 
its  powers  is  exactly  the  opposite  of  that  for  construing 
the  powers  of  the  states.  The  state  governments  have  un- 
limited powers,  except  where  prohibited  by  the  United 


(19)     Opinion  of  Justices,  14  Gray,  615-16. 


GENERAL  CONCEPTIONS  27 

States  Constitution  or  by  their  own  constitutions.  The 
United  States,  on  the  other  hand,  can  exercise  no  powers 
whatever  except  those  found  granted  to  it  in  the  Consti- 
tution. Of  course  all  of  these  Federal  powers  need  not 
be  expressly  granted,  but  may  fairly  be  implied  from  those 
that  are  expressly  granted.  For  instance,  the  United 
States  is  given  express  power  to  establish  post  offices  and 
post  roads.  As  incidental  to  this  power  and  implied  from 
it,  the  United  States  may  carry  the  mail,  regulate  the 
character  of  mailable  matter,  and  provide  penalties  for 
any  interference  with  these  rules.  But  unless  a  power 
can  be  found  granted  to  the  United  States  by  the  Consti- 
tution, either  expressly  or  by  fair  implication,  Congress 
cannot  constitutionally  exercise  it. 

§  28.  Same:  Supreme  in  its  sphere.  The  second 
great  principle  is  that  although  the  United  States  is  a 
government  of  limited  powers,  its  control  over  such  pow- 
ers as  are  granted  to  it  is  full  and  absolute,  and  that  its 
laws  passed  in  the  exercise  of  the  granted  powers  are 
superior  to  all  state  laws  conflicting  therewith.  For  in- 
stance, Congress  having  been  given  control  of  the  post 
office  may,  if  it  sees  fit,  control  entirely  everything  rea- 
sonably connected  with  the  postoffice,  even  to  the  extent 
of  making  it  a  government  monopoly.  The  supremacy 
of  its  laws  over  those  of  the  states  is  probably  secured 
by  implication  from  the  nature  of  the  government  it  cre- 
ates, but  is  also  expressly  provided  for  in  Article  VI  of 
the  Constitution:  ^'This  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made  in  pursuance 
thereof;  and  all  treaties  made,  or  which  shall  be  made, 


28  CONSTITUTIONAL  LAW 

under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  state 
shall  be  bonnd  thereby,  anything  in  the  constitution  or  law 
of  any  state  to  the  contrary  notwithstanding." 

The  principles  stated  in  this  and  the  preceding  sub- 
section are  further  discussed  in  §§  249-55,  below. 


CHAPTER  11. 

FUNCTION  OF  JUDICIARY  IN  ENFORCING  CONSTITUTIONS. 

Section    1.    Power    to    Declaee    Laws    Unconstitu- 
tional. 

§29.  Departments  of  government.  Modem  political 
analysis  divides  the  powers  of  government  into  three 
great  departments,  the  legislative,  executive,  and  judicial ; 
and  modern  constitutional  government  has  decreed  a  con- 
siderable separation  of  these  departments  to  prevent 
abuses.  Of  course  an  absolute  separation  is  impracticable 
because  the  departments  are  but  different  aspects  of  one 
government  and  are  closely  connected  at  many  points. 
American  constitutional  doctrines  as  to  the  separation  of 
governmental  powers  have  been  discussed  in  §§  17-23, 
above. 

§  30.  Power  to  declare  laws  unconstitutional.  Where 
does  it  reside?  Now,  having  a  written  constitution  at- 
tempting in  a  general  way  to  divide  the  powers  of  gov- 
ernment between  the  three  departments  and  to  prohibit 
the  exercise  of  certain  powers  altogether,  the  very  inter- 
esting question  presents  itself:  Who,  and  under  what 
circumstances,  is  to  determine  when  any  given  department 
oversteps  its  proper  sphere,  or  attempts  to  exercise  a 
forbidden  power? 

§  31.    Same:    European  doctrine.    As  a  matter  of  pure 

Vol.  xn— 4  ^ 


so  CONSTITUTIONAL  LAW 

theory,  there  is  of  course  no  more  reason  why  one  of 
three  departments  of  government,  admitted  to  be  of  equal 
and  coordinate  powers,  should  have  the  right  to  declare 
acts  of  the  others  unconstitutional  than  that  any  of  the 
others  should  have  the  same  power.  Each  department 
might  be  left  to  judge  for  itself  what  was  constitutional 
within  its  own  sphere,  and  when  there  was  a  conflict  they 
could  compromise  or  get  along  otherwise  as  best  they 
could.  This  is  the  view  adopted  on  the  continent  of 
Europe.  No  European  court  acting  under  a  written  con- 
stitution can  declare  invalid  an  act  of  its  coordinate 
legislative  body.  The  legislators  take  an  oath  to  obey 
the  constitution,  but  within  the  legislative  sphere  they  are 
the  judges  of  what  is  constitutional,  and  the  duty  of  the 
courts  is  to  enforce  the  laws  actually  passed.  The  determi- 
nation of  what  laws  are  constitutional  is  the  function  of 
the  legislature.  In  like  manner  the  executive  decides  for 
himself  what  are  the  constitutional  duties  he  is  sworn 
to  perform,  and,  except  where  there  are  provisions  for  im- 
peaching him,  this  decision  is  not  subject  to  review  by  any 
other  department  of  government.  The  same  can  be  said 
of  the  acts  of  the  judiciary.  Each  judge  swears  to  obey 
the  constitution,  but  the  court  is  its  own  judge  of  what 
this  requires  within  its  sphere. 

The  result  is  that  a  written  constitution  in  Continental 
countries  is  a  rule  binding  the  political  morality  and  com- 
mon sense  of  each  of  the  departments  of  government,  but 
its  provisions  are  not  enforceable  by  one  coordinate 
branch  of  the  government  against  another,  except  where 


GENERAL  CONCEPTIONS  31 

some  express  provision  to  this  effect  is  inserted  in  tho 
constitution. 

§32.  Same:  English  doctrine.  As  the  result  of  a 
series  of  constitutional  struggles  in  England  between  the 
crown  and  the  people  the  legislative  power  of  Parliament 
had  established  itself  as  supreme  over  the  executive  power 
of  the  crown,  and  the  judiciary  also  had  become  inde- 
pendent of  the  crown  by  a  life  tenure  of  office.  The  at- 
tempts of  Parliament  to  coerce  America  by  passing  acts 
of  taxation  that  were  felt  to  be  tyrannous,  gave  rise  to 
speculation  as  to  the  extent  of  this  power  of  Parliament. 
Was  it  supreme,  no  matter  to  what  extent  it  might  go,  or 
were  there  limits  to  its  power  based  on  natural  justice 
and  common  right,  and  if  so  could  the  courts  enforce 
these  limitations  by  declaring  acts  of  Parliament  that 
overstepped  them  to  be  void  ? 

In  spite  of  a  few  dicta  of  English  judges  to  the  effect 
that  acts  of  Parliament  repugnant  to  reason  and  common 
right  were  void,  there  can  be  no  doubt  that  an  act  of 
Parliament  when  clearly  expressed  is  supreme  and  bind- 
ing on  the  English  courts,  no  matter  how  unjust  or  un- 
wise its  provisions  (1).  Opinions  to  the  contrary,  how- 
ever, based  chiefly  on  political  grounds  and  the  intense 
opposition  of  the  colonists  to  taxation  by  England  with- 
out representation,  were  quite  widespread  among  Amer- 
ican statesmen  before  the  Revolution,  and  no  doubt 
had  some  influence  in  determining  the  course  of  American 
practice  in  controlling  acts  of  the  legislature. 


(1)     Webb  V.  Outrlm  (1907),  A.  C.  81,  8». 


32  COXSTITUTIOxNAL  LAW 

§  33.  Colonial  practice.  Its  influence.  Tlie  American 
co)o-,;es  for  a  long  time  prior  to  the  Revolution  were  gov- 
erned under  colonial  charters,  written  instruments 
granted  by  the  monarchs  of  England.  They  had  legisla- 
tures whose  laws  had  to  conform  to  the  provisions  of 
these  charters.  If  they  did  not,  they  were  void,  and  could 
be  so  declared  by  the  colonial  courts,  or,  on  appeal,  by  the 
pri\7'  council  of  England.  There  was  nothing  strange 
about  this.  Neither  the  legislature  nor  the  colonial  courts 
were  independent  departments  of  government,  each  su- 
preme in  its  sphere.  Both  were  subject  entirely  to  the 
laws  of  Parliament  and  the  English  king. 

Now  when  the  colonies  became  free,  and  there  was  no 
longer  any  governmental  authority  superior  to  the  courts 
and  legislature  of  the  late  colonies,  this  reason  for  the 
courts  disregarding  the  acts  of  the  legislature  disap- 
peared. Both  were  now  coordinate  departments  of  gov- 
ernment, supreme  in  their  own  spheres,  and  responsible 
only  to  the  people  at  the  end  of  their  terms  of  oflfice.  Both 
were  subject  to  the  state  constitution,  but  there  was  no 
provision  of  that  constitution  which  expressly  authorized 
the  court  to  refuse  to  enforce  unconstitutional  laws,  any 
more  than  the  legislature  was  given  authority  to  refuse 
to  appropriate  money  for  the  judges'  salaries  if  the  legis- 
lature thought  the  court  had  acted  unconstitutionally. 
The  executive,  for  example,  has  no  right  to  refuse  to  en- 
force a  law  passed  over  his  veto,  which  he  considers  un- 
constitutional. If  he  does  so,  he  may  be  impeached.  But 
the  colonies  had  been  in  the  habit  of  seeing  colonial  laws 
occasionally  declared  void  by  the  courts.     To  the  con- 


GENERAL  CONCEPTIONS  33 

servative  classes  of  the  community,  which  at  that  time 
had  a  strong  controlling  influence,  this  seemed  a  wise  and 
sensible  means  of  enforcing  constitutional  guarantees  of 
security  of  property  against  the  possible  excesses  of  a 
legislature  chosen  by  popular  suffrage.  So,  on  the 
adoption  of  the  state  constitutions,  the  courts  tacitly  as- 
sumed the  function  of  interpreting  the  constitution  for 
the  legislature,  and  this  was  generally  acquiesced  in, 
though  not  without  some  opposition  (la). 

§  34.  Early  American  decisions.  The  earliest  Amer- 
ican decision  that  judges  might  disregard  legislative  acts 
forbidden  by  the  constitution  appears  to  have  been  given 
in  New  Jersey  in  1780,  in  the  case  of  Holmes  v.  Walton 
(2).  It  was  followed  by  a  case  in  New  York  in  1784,  Rut- 
gers V.  Waddington  (3),  in  which  the  court  so  construed 
an  act  of  the  New  York  legislature  as  to  avoid  a  violation 
of  the  treaty  of  peace  with  Great  Britain.  The  decision 
excited  considerable  popular  discontent,  and  the  New 
York  assembly  passed  a  resolution  denying  the  right  of 
the  court  to  dispense  with  an  act  of  the  legislature.  A 
little  later  the  judges  in  Rhode  Island  likewise  declared 
void  an  act  of  the  legislature  in  violation  of  the  constitu- 
tion, in  the  case  of  Trevett  v.  Weeden  (4).  The  Rhode 
Island  legislature  summoned  the  judges  before  it  to  ex- 
plain their  reasons  for  this.  After  an  explanation  by 
the  judges  the  legislature  voted  its  dissatisfaction  with 


(la)  James  B.  Thayer  in  7  Harv.  Law  Rev.  130-34. 

(2)  4  American  Historical  Review,  456. 

(3)  Pamphlet,  edited  in  1866;  1  Thayer,  Cas.  C.  L.,  63. 

(4)  2  Chandler's  Crim.  Trials,  269;  1  Thayer,  Cas.  C.  L.,  73. 


M  CONSTITUTIONAL  LAW 

their  reasons,  and  a  motion  was  made  to  dismiss  the 
judges  from  ofEce,  but  this  attempt  was  finally  abandoned. 
There  were  also  several  other  judicial  expressions  of 
opinion  by  colonial  courts  to  the  same  effect  before  the 
adoption  of  the  United  States  Constitution. 

§  35.  Decision  under  Federal  Constitution:  Marbury 
V.  Madison.  When  the  Philadelphia  convention  met  in 
1787  to  frame  the  Constitution  of  the  United  States,  its 
legal  members,  of  whom  there  were  a  number  of  much 
prominence,  must  have  known  of  these  decisions,  and  it 
is  likely  that  the  convention  expected  the  courts  to  ex- 
ercise the  power  of  disregarding  unconstitutional  acts  of 
Congress.  In  the  Federalist  papers,  No.  78,  it  was  argued 
by  Hamilton  that  the  courts  would  have  this  power  under 
the  Constitution  of  the  United  States.  In  1803  the  ques- 
tion finally  came  before  the  Supreme  Court  of  the  United 
States  in  the  great  case  of  Marbury  v.  Madison  (5).  The 
Constitution  expressly  limited  the  original  jurisdiction  of 
that  court  to  certain  cases,  but  an  act  of  Congress  at- 
tempted to  give  it  jurisdiction  in  another  case.  The 
opinion  of  the  court,  given  by  Chief  Justice  Marshall, 
held  the  act  unconstitutional  and  laid  down  the  principle 
that  it  was  the  duty  of  the  court  to  disregard  such  acts. 
The  judges  had  sworn  to  support  the  Constitution,  which 
they  could  not  do  if  they  gave  effect  to  a  law  inconsistent 
with  it.  The  act  of  Congress  was  inferior  to  the  Constitu- 
tion and  when  the  two  were  inconsistent  the  judges  were 
bound  by  their  oath  to  disregard  the  inferior  law. 


(5)     1  Cranc'a.  (U.  3.)  137. 


GENERAL  CONCEPTIONS  35 

§  36.  Reasons  for  the  doctrine.  It  may  be  doubted 
whether  this  reasoning  is  really  so  forcible  as  it  at  first 
seems.  The  President  has  also  sworn  to  support  the 
Constitution  of  the  United  States.  Is  he,  therefore,  at 
liberty  to  refuse  to  enforce  an  act  of  Congress  that  he 
deems  unconstitutional?  Is  it  any  part  of  his  duty  under 
the  Constitution  to  decide  this  question?  The  generally 
accepted  doctrine  is  that  the  executive  is  not  charged  with 
this  function ;  nor  are  the  courts  necessarily  charged  with 
such  a  duty,  merely  because  they  have  sworn  to  support 
the  Constitution.  The  true  reasons  for  the  American 
practice  in  this  regard,  which  is  now  universally  recog- 
nized in  this  country,  are  political.  It  is  desirable  that 
such  a  power  be  lodged  outside  of  the  departments  upon 
whose  action  our  constitutions  have  placed  restrictions  in 
the  interests  of  the  rights  and  liberties  of  the  individual. 
The  departments  upon  which  these  checks  have  been 
placed  are  chiefly  the  executive  and  the  legislative.  For 
them  to  measure  their  own  powers  in  a  popular  govern- 
ment in  times  of  public  excitement  is  to  make  a  constitu- 
tion inoperative  in  the  very  emergencies  for  which  these 
prohibitions  were  inserted.  The  judiciary  is  the  weakest 
of  the  three  departments  of  government.  It  controls 
neither  the  purse  nor  the  sword,  and  unassisted  it  can  do 
little  that  is  injurious  to  political  or  civil  liberty.  Its 
members  are  likely  to  be  more  conservative,  and  to  be 
less  influenced  by  momentary  passion  than  are  the  mem- 
bers of  the  legislature.  Giving  the  judiciary  a  certain 
negative  control  over  the  acts  of  the  other  departments 
is  likely  to  result  in  the  provisions  of  a  constitution  be- 


36  CONSTITUTIONAL  LAW 

ing  more  faithfully  observed  than  would  otherwise  be 
the  case. 

This  construction,  political  rather  than  logical,  has  been 
amply  vindicated  in  American  experience,  and  the  doc- 
trine that  our  judiciary  may  declare  laws  unconstitutional 
is  perhaps  the  most  important  single  American  contribu- 
tion to  the  science  of  governmental  administration. 

Section  2.    Limitations  Upon  Exercise  of  Powee. 

§  37.  Power  is  strictly  judicial  in  character.  "What  is 
the  nature  of  this  power  of  the  courts  to  declare  laws  un- 
constitutional, and  what  are  the  proper  occasions  for  its 
exercise?  It  is  not  a  power  that  is  exercised  as  a  matter 
of  course  by  the  courts  as  each  statute  of  doubtful  valid- 
ity comes  from  the  legislature.  The  power  is  strictly  a 
judicial  one,  to  be  exercised  by  the  courts  only  in  the  course 
of  litigation  in  which  the  question  of  the  constitutionality 
of  a  legislative  act  necessarily  arises.  It  may  not  be  for 
the  interest  of  an  individual  to  raise  the  question,  and  so 
an  unconstitutional  law  may  be  enforced  upon  the  statute 
books  for  years  before  it  is  actually  brought  into  question 
before  a  court.  When  a  national  bank  was  first  chartered 
by  the  United  States  in  1791  grave  doubts  were  expressed 
of  its  constitutionality,  and  those  doubts  continued  for 
years,  yet  it  was  twenty-eight  years  before  a  suit  actually 
came  before  the  courts  requiring  a  decision  on  this 
question. 

§  38.  Unconstitutionality  should  be  clear.  Sometimes 
the  question  of  the  constitutionality  of  a  legislative  act 
is  a  very  close  one,  depending  upon  the  interpretation  of 


GENERAL  CONCEPTIONS  37 

complex  social  and  economic  facts,  where  reasonable  men 
may  disagree  widely  in  their  conclusions.  Tne  legislature 
is  charged  in  the  first  instance  with  the  duty  of  interpret- 
ing the  constitution,  of  deciding  what  it  permits,  and 
what,  within  the  limits  of  permissible  action,  is  politically 
expedient.  The  legislature  is  chosen  so  as  to  represent  a 
wide  constituency  and  many  shades  of  political  and  social 
opinion.  When  it  has  decided  upon  a  course  of  action 
and  embodied  it  in  a  statute,  perhaps  of  doubtful  con- 
stitutionality, what  should  be  the  attitude  of  the  courts? 
Suppose  for  instance  that  the  legislature  has  passed  an 
act  making  eight  hours  a  day's  labor  in  a  mine,  or  has 
forbidden  the  payment  of  wages  to  employees  by  store 
orders.  On  the  one  hand  the  legislature  is  forbidden  to 
deprive  a  man  arbitrarily  of  his  right  to  work  and  con- 
tract as  he  thinks  best,  but  on  the  other  hand  it  is  the 
duty  of  the  legislature  to  guard  the  welfare  of  the  com- 
munity even  against  the  improvident  acts  and  contracts 
of  individuals.  It  may  well  be  that  a  large  number  of 
thinking  persons  in  the  community  feel  that  eight  hours 
work  underground  daily  is  all  that  average  human  health 
can  stand,  and  that  there  are  abuses  connected  with  the 
payment  of  wages  in  store  orders  that  can  only  be  rem- 
edied by  the  abolition  of  the  practice.  An  equal  number 
of  competent  persons  may  perhaps  disagree  with  either 
of  these  positions,  on  equally  reasonable  grounds.  If 
the  constitutionality  of  the  act  is  to  be  decided  according 
to  the  individual  social  or  economic  views  of  the  judges, 
then  inevitably  their  opinions  rather  than  those  of  the 
legislature  will  be  enforced ;  and  if  the  question  is  one  of 


SS  CONSTITUTIONAL  LAW 

any  importfl  \co  the  same  political  influences  that  created 
the  legislative  majority  in  favor  of  the  statute  will  seek 
to  create  a  judicial  majority  in  the  court  in  favor  of  it, 
and  judges  will  be  chosen  on  account  of  their  social,  and 
economic  views,  rather  than  on  account  of  their  legal 
ability.  These  undesirable  results  can  only  be  avoided 
by  the  courts  taking  the  position  that  legislative  acts  are 
valid  if  they  may  reasonably  be  thought  to  be  constitu- 
tional, even  though  there  is  a  rational  difference  of 
opinion,  and  even  if  the  judges  as  individuals  may  hold 
opinions  contrary  to  the  legislature.  A  settlement  of 
such  reasonable  differences  of  opinion  is  exactly  what  a 
legislature  is  for,  and  it  is  no  part  of  the  judicial  function 
to  enforce  one  reasonable  view  rather  than  another  rea- 
sonable one  that  conflicts  with  it. 

§  39.  Same:  Judicial  declarations  to  this  effect.  It  is 
commonly  deemed  by  courts,  therefore,  that  they  are  not 
to  declare  laws  unconstitutional  unless  the  matter  is  clear. 
In  Pennsylvania,  for  instance,  it  has  been  said:  **For 
weighty  reasons  it  has  been  assumed  as  a  principle  in 
corstitutional  construction  by  the  Supreme  Court  of  the 
United  States,  by  this  court,  and  every  other  court  of 
reputation  and  influence,  that  an  act  of  the  legislature  is 
not  to  be  declared  void  unless  the  violation  of  the  consti- 
tution is  so  manifest  as  to  leave  no  room  for  reasonable 
doubt"  (6). 

The  United  States  Supreme  Court  has  said:  "This 
declaration  should  never  be  made  except  in  clear  cases. 


(6)     Commonwealth  v.  Smith,  4  Binu.  (Pa.)  117. 


GENERAL  CONCEPTIONS  39 

Every  possible  presumption  is  in  favor  of  the  validity  of 
the  statute  and  this  continues  until  the  contrary  is  shown 
beyond  all  rational  doubt.  One  branch  of  government 
cannot  encroach  on  the  domain  of  another  without  danger. 
The  safety  of  our  institutions  depends  in  no  small  degree 
on  a  strict  observance  of  this  salutary  rule"  (7). 

Judicial  statements  to  this  effect  are  very  common  (8). 

§  40.  Exercised  only  in  actual  litigation.  Besides  the 
qualification  just  discussed,  that  a  statute  should  be  de- 
clared unconstitutional  only  in  a  very  clear  case,  there  are 
several  other  limitations  upon  the  power. 

1.  As  suggested  above,  it  can  be  exercised  only  in  the 
course  of  actual  litigation.  Courts  will  not  judicially  de- 
clare laws  unconstitutional  in  moot  cases,  nor  pass  upon 
their  validity  at  the  request  of  the  other  departments  of 
government  outside  of  ordinary  litigious  procedure.  An 
apparent  exception  to  this  in  the  case  of  so  called  ''ad- 
visory opinions"  is  discussed  in  §47,  below.  If  no  one 
cares  to  question  an  act  of  the  legislature,  or  if  the  exist- 
ing statutes  regulating  the  jurisdiction  and  procedure  of 
the  courts  do  not  permit  a  proper  remedy,  it  may  be  im- 
possible to  secure  a  judicial  declaration  of  the  invalidity 
of  a  statute  really  unconstitutional.  For  instance,  Con- 
gress has  apparently  not  provided  any  effective  pro- 
cedure for  the  enforcement  in  the  Federal  courts  of  the 
right  of  suffrage  in  a  state,  even  when  improperly  denied 
by  the  state  through  the  requirement  of  an  unconstitu- 


(7)  Sinking  Fund  Cases,  99  U.  S.  700,  718. 

(8)  People  V.  Rice,  135  N.  Y.  473,  483-4. 


40  CONSTITUTIONAL  LAW 

tional  system  of  registration  as  preliminary  to  voting  (9). 

§  41.  Power  not  applicable  to  political  acts.  2.  The 
courts  have  no  power  to  declare  invalid  acts  of  the  legis- 
lature touching  political  matters,  unless  expressly  given 
these  by  the  constitution.  As  to  such  matters  the  execu- 
tive and  legislature  are  the  sole  judges  of  the  consti- 
tutionality of  their  own  acts,  just  as  the  courts  are  the 
sole  judges  of  the  extent  of  their  own  judicial  powers. 
For  instance,  the  United  States  Constitution  (10)  pro- 
vides that  the  United  States  shall  guarantee  every  state 
in  the  Union  a  republican  form  of  government.  In  1841-2 
a  condition  of  civil  disorder  existed  in  the  state  of  Rhode 
Island  and  two  separate  organizations  each  claimed  to  be 
the  legal  government  of  the  state.  Violent  encounters 
took  place  between  the  partisans  of  the  rival  governments 
and  when  suits  arising  therefrom  came  into  the  United 
States  courts  it  was  questioned  which  was  the  lawful  gov- 
ernment of  the  state.  In  Luther  v.  Borden  (11)  the  Su- 
preme Court  said: 

'  *  The  Constitution  of  the  United  States  . . .  has  treated 
the  subject  as  political  in  its  nature  and  placed  the  power 
in  the  hands  of  that  department.  It  rests  with  Congress 
to  decide  what  government  is  the  established  one  in  a 
state.  For  as  the  United  States  guarantee  to  each  state 
a  republican  government,  Congress  must  necessarily  de- 
cide what  government  is  established  in  a  state  before  it 
can  determine  whether  it  is  republican  or  not.    And  when 


(9)  Giles  V.  Harris,  189  U.  S.  475. 

(10)  Const.  Art.  IV,  sec.  4. 

(11)  Luther  v.  Borden,  7  How.  1. 


GENERAL  CONCEPTIONS  41 

the  senators  and  representatives  of  a  state  are  admitted 
into  the  councils  of  the  Union,  the  authority  of  the  gov- 
ernment under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  con- 
stitutional authority.  And  its  decision  is  binding  on  the 
other  departments  of  government,  and  could  not  be  ques- 
tioned in  a  judicial  tribunal."  . . . 

Similarly,  after  the  war  Congress  passed  several  laws 
commonly  known  as  ''Reconstruction  acts'*  for  the  gov- 
ernment of  the  states  recently  in  rebellion  before  their 
representatives  were  readmitted  to  Congress.  The  state 
01  Georgia  began  a  suit  against  the  Secretary  of  War  and 
others  to  prevent  the  execution  of  certain  provisions  of 
those  acts  on  the  grounds  that  the  state  was  unconstitu- 
tionally deprived  of  its  political  rights.  The  court  de- 
nied the  relief  sought,  saying : 

''That  these  matters,  both  as  stated  in  the  body  of  the 
bill,  and  the  prayers  for  relief,  call  for  the  judgment  of 
the  court  upon  political  questions,  and,  upon  rights,  not  of 
persons  or  property,  but  of  a  political  character,  will 
hardly  be  denied.  For  the  rights  for  the  protection  of 
which  our  authority  is  invoked,  are  the  rights  of  sov- 
ereignty, of  political  jurisdiction,  of  government,  of  cor- 
porate existence  as  a  state,  with  all  its  constitutional 
powers  and  privileges"  (12). 

So,  even  though  a  state  constitution  prescribes  how  the 
state  shall  be  divided  into  legislative  districts,  the  division 
is  a  political  function  and  an  improper  one  cannot  be  in- 


(12)     Georgia  v.  Stanton,  6  Wall.  50. 


42  CONSTITUTIONAL  LAW 

validated  by  the  courts,  in  the  absence  of  express  con- 
stitutional authority  (13). 

§  42.  When  other  departments  cannot  be  compelled  to 
act.  3.  The  courts  cannot  compel  the  legislature  or  the 
chief  executive  to  act,  nor  even  a  subordinate  oflBcer  to  act 
where  he  is  entrusted  with  a  discretion.  In  Mississippi 
V.  Johnson  (14)  in  a  case  arising  under  the  Reconstruc- 
tion acts  the  court  said : 

*  *  The  single  point  which  requires  consideration  is  this : 
Can  the  President  be  restrained  by  injunction  from  carry- 
ing into  effect  an  act  of  Congress  alleged  to  be  unconsti- 
tutional? .  .  . 

'*A  ministerial  duty,  the  performance  of  which  may, 
in  proper  cases,  be  required  of  the  head  of  a  department, 
by  judicial  process,  is  one  in  respect  to  which  nothing  is 
left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  im- 
posed by  law.  . .  .  Very  different  is  the  duty  of  the  Presi- 
dent in  the  exercise  of  the  power  to  see  that  the  laws  are 
faithfully  executed,  and  among  these  laws  the  acts  named 
in  the  bill.  By  the  first  of  these  acts  he  is  required  to  as- 
sign generals  to  command  in  the  several  military  dis- 
tricts, and  to  detail  sufficient  military  force  to  enable 
such  officers  to  discharge  their  duties  under  the  law.  By 
the  supplementary  act,  other  duties  are  imposed  on  the 
several  commanding  generals,  and  these  duties  must 
necessarily  be  performed  under  the  supervision  of  the 
President  as  commander-in-chief.     The   duty  thus  im- 


(13)  People  V.  Rice,  135  N.  Y.  473. 

(14)  4  Wall.  475. 


GENERAL  CONCEPTIONS  43 

posed  on  the  President  is  in  no  just  sense  ministerial. 
It  is  purely  executive  and  political.  .  .  . 

''The  Congress  is  the  legislative  department  of  the 
government;  the  President  is  the  executive  department. 
Neither  can  be  restrained  in  its  action  by  the  judicial  de- 
partment ;  though  the  acts  of  both,  when  performed,  are, 
in  proper  cases,  subject  to  its  cognizance." 

It  is  generally  held  that  the  governor  of  a  state  cannot 
be  compelled  by  the  state  courts  to  perform  any  act 
whatever,  even  though  involving  no  discretion,  because 
he  represents  the  supreme  executive  authority  of  the 
state  (15)  although  some  states  hold  the  contrary  view 
as  to  purely  ministerial  acts  (16). 

Another  illustration  of  the  inability  of  the  courts  to 
compel  the  political  departments  of  government  to  dis- 
charge their  functions,  even  when  the  latter  unconstitu- 
tionally neglect  them,  is  that  afforded  by  the  unhonored 
section  of  the  Fourteenth  Amendment  to  the  United 
States  Constitution  which  prescribes  that  when  the  right 
of  suffrage  is  denied  to  any  male  citizen  of  a  state  over 
twenty-one  years  old,  except  for  crime,  such  state's  rep- 
resentation in  Congress  shall  be  proportionately  reduced. 
No  power  except  that  of  Congress  can  enforce  this  section 
of  the  constitution,  and  the  latter  has  never  chosen  to  act 
thereunder. 

§  43.  Laws  not  invalid  merely  because  unwise.  4.  The 
courts  cannot  declare  a  law  unconstitutional  merely  be- 


ds)    People  V.  Morton,  156  N.  Y.  136. 
(16)     State  V.  Nash,  66  Ohio  612. 


44  CONSTITUTIONAL  LAW 

cause  it  is  unwise,  or  oppressive,  or  contrary  to  the  spirit 
of  our  institutions.    As  regards  this  the  courts  have  said: 

"If  a  particular  act  of  legislation  does  not  conflict  with 
any  of  the  limitations  or  restraints  [in  the  constitution] 
which  have  been  referred  to,  it  is  not  in  the  power  of  the 
courts  to  suggest  its  unconstitutionality,  however  unwise 
its  provisions  may  be,  or  whatever  the  motive  may  have 
been  which  led  to  its  enactment"  (17). 

''The  theory  that  laws  may  be  declared  void  when 
deemed  to  be  opposed  to  natural  justice  and  equity,  al- 
though they  do  not  violate  any  constitutional  provisions, 
has  some  support  in  the  dicta  of  learned  judges,  but  has 
not  been  approved  so  far  as  we  know  by  any  authoritative 
adjudication,  and  is  repudiated  by  numerous  authorities. 
.  .  .  Admitting  as  we  do  the  soundness  of  this  view 
and  fully  approving  it,  we  come  back  to  the  proposition 
that  no  law  can  be  pronounced  invalid,  for  the  reason 
simply  that  it  violates  our  notions  of  justice,  is  oppressive 
and  unfair  in  its  operation,  or  because  .  .  .  it  is  not 
justified  by  public  necessity  or  designed  to  promote  the 
public  welfare.  If  it  violates  no  constitutional  provision 
it  is  valid  and  must  be  obeyed."  (18)  ''The  judiciary 
can  only  arrest  the  execution  of  a  statute  when  it  con- 
flicts with  the  constitution.  It  cannot  run  a  race  of  opin- 
ion upon  a  point  of  right,  reason,  and  expediency  with 
the  law-making  power"  (18a). 

§  44.    Administrative  regulations  of  the  power.    5.  In 

(IT)     People  V.   Draper,   15   N.   Y.   532. 
(18)     Bertholf  v.  O'Reilly,  74  N,  Y.  509. 
(18a)     Cooley,  Const.  Lim.  236-7   (7  ed.). 


GENERAL  CONCEPTIONS  45 

addition  to  the  more  important  restraints  upon  the  power 
of  the  judiciary  to  declare  laws  unconstitutional  that  have 
been  discussed  above,  there  are  certain  administrative 
rules  usually  regarded  by  courts  in  dealing  with  the  mat- 
ter. Among  these  are  requirements  that  the  question 
must  be  raised  by  a  party  really  interested,  that  the 
litigation  must  be  genuine  and  not  merely  collusive,  that 
ordinarily  laws  should  not  be  pronounced  unconstitu- 
tional save  by  the  highest  state  or  Federal  courts  and  with 
a  full  bench  of  judges ;  and  that  the  decision  of  the  consti- 
tutional point  must  really  be  necessary  to  the  disposition 
of  the  case. 

The  only  one  of  these  rules  that  perhaps  requires  any 
explanation  is  the  one  against  collusive  litigation.  This 
is  to  prevent  the  necessity  of  deciding  constitutional 
questions  without  adequate  argument  in  a  friendly  suit 
between  two  parties  who  really  wish  the  same  decision. 
It  does  not  forbid  the  consideration  of  constitutional  ques- 
tions in  any  suit  merely  because  both  the  plaintiff  and  the 
defendant  desire  the  same  decision,  provided  that  the 
government  or  other  parties  adversely  interested  are 
given  a  full  opportunity  to  be  heard.  In  the  great  In- 
come Tax  case  of  1895,  for  instance,  a  stockholder  of  a 
New  York  trust  company  brought  suit  to  enjoin  the  trust 
company  from  paying  the  income  tax  to  the  Federal  gov- 
ernment. He  was  interested  in  not  having  his  dividends 
reduced,  and  of  course  all  the  officials  of  the  trust  com- 
pany sympathized  with  this  and  would  scarcely  have  made 
an  active  defense.  At  the  very  beginning  of  the  suit, 
however,  the  attorney-general  of  the  United  States  inter- 

Vol.  XII— 5 


46  CONSTITUTIONAL  LAW 

vened  with  able  counsel  and  the  government's  side  of  the 
case  was  fully  presented  at  every  stage.  The  litigation 
was  therefore  real,  even  though  both  the  nominal  parties 
desired  the  same  result  (19). 

Section  3.    Effect  of  an  Unconstitutional.  Act. 

§  45.  In  general.  Incidental  effect.  Generally  speak- 
ing, when  a  statute  is  declared  unconstitutional  private 
rights  are  left  unaffected  by  it,  just  as  they  would  have 
been  had  it  never  been  passed.  The  unconstitutional 
statute,  indeed,  may  afford  protection  to  an  officer  from 
prosecution  for  a  crime  requiring  a  particular  state  of 
mind,  which,  owing  to  his  reliance  upon  the  unconstitu- 
tional statute,  he  may  not  have  had.  He  could  not,  for 
instance,  be  convicted  of  larceny  for  taking  the  property 
which  he  thought  himself  authorized  to  do  under  a  stat- 
ute really  unconstitutional.  His  reliance  upon  the  statute 
has  prevented  his  having  the  state  of  mind  necessary  to 
make  him  a  thief.  Moreover,  acts  done  upon  the  faith  of 
an  unconstitutional  statute  may  raise  moral  obligationsi 
that  the  government  is  justified  in  discharging,  when,  but 
for  such  a  statute  no  such  obligations  would  have  been 
incurred.  For  instance,  the  United  States  passed  an  act 
giving  a  pecuniaiy  bounty  to  sugar  producers,  which  was 
shortly  afterwards  repealed.  Congress  then  passed  an 
act  making  certain  reimbursements  to  persons  who  had 
expended  money  upon  the  faith  of  the  previous  bounty 
act.  Regarding  the  validity  of  this  latter  provision,  the 
court  decided  that,  even  though  the  original  bounty  act 


(19)     Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429. 


GENERAL  CONCEPTIONS  4T 

were  unconstitutional,  there  was  still  sufiQcient  doubt 
about  it  to  make  it  proper  for  the  government,  in  dis- 
charge of  a  moral  obligation,  to  reimburse  those  who  had 
spent  money  upon  the  faith  of  the  act  (20).  In  so  far  as 
an  officer,  even  though  acting  in  good  faith,  invades  rights 
of  private  property  and  personal  immunity  under  an  un- 
constitutional statute,  he  is  liable  civilly  to  injured  per- 
sons, just  as  though  the  act  had  not  been  passed  (21). 
On  the  other  hand,  if  a  public  officer  honestly  thinks  the 
act  unconstitutional  and  therefore  declines  to  obey  it,  he 
is  liable  for  refusal  if  the  law  is  later  upheld  by  the 
courts  (22). 

§  46.  Effect  of  partial  unconstitutionality.  More  diffi- 
cult questions  arise  where  an  act  is  unconstitutional  in 
part  only.  Does  the  entire  act  fail  in  this  case,  or  do  only 
the  unconstitutional  parts  of  it?  This  question  was  dis- 
cussed in  the  Income  Tax  case  of  1895.  Congress  had  at- 
tempted to  levy  a  tax  upon  incomes  in  excess  of  $4,000, 
from  whatever  sources  derived.  A  majority  of  the  court 
held  that  the  income  from  real  estate  and  invested  per- 
sonal property  was  a  direct  tax,  and  hence  forbidden  to 
Congress  unless  it  were  apportioned  according  to  pop- 
ulation, which  had  not  been  done.  Of  course  there  re- 
mained a  large  number  of  taxable  incomes  from  the  pro- 
fessions, trades,  and  other  employments,  but  the  income 
from  $65,000,000,000  of  real  and  personal  property  would 


(20)  United  States  v.  Realty  Co.,  163  U.  S.  427. 

(21)  Campbell  v.  Sherman,  35  Wis.  103. 

(22)  Clark  v.  Miller,  54  N.  Y.  528. 


4S  CONSTITUTIONAL  LAW 

be  excluded,  leaving  the  eutire  burden  to  fall  on  other 
incomes.    The  court  said : 

"It  is  undoubtedly  true  that  there  may  be  cases  where 
one  part  of  a  statute  may  be  enforced  as  constitutional, 
and  another  declared  inoperative  and  void,  because  un- 
constitutional ;  but  these  are  cases  where  the  parts  are  so 
distinctly  separable  that  each  can  stand  alone,  and  where 
the  court  is  able  to  see  and  declare  that  the  intention  of 
the  legislature  was  that  the  part  pronounced  valid  would 
be  held  enforceable,  even  though  the  other  part  should 
fail.  To  hold  otherwise  would  be  to  substitute  for  the  law 
intended  by  the  legislature  one  they  may  never  have  been 
willing  by  itself  to  enact." 

Measured  by  this  test  a  majority  thought  Congress 
could  not  have  intended  to  tax  incomes  at  all,  if  the  in- 
come from  real  and  personal  property  was  to  be  ex- 
cluded (23). 

Section  4.    Advisory  Opinions. 

§  47.  Nature  and  effect  of  advisory  opinions.  As  pre- 
viously explained  in  this  chapter,  it  is  usually  held  un- 
congtitutional  to  require  the  courts  to  give  opinions  to 
the  other  departments  of  the  government  for  their  con- 
venience in  advance  of  actual  litigation,  as  such  opinions 
have  not  a  judicial  character.  The  constitutions  of  a  few 
states,  however,  expressly  require  the  rendition  of  such 
opinions  by  the  highest  court  of  the  state  at  the  request 
of  the  governor  or  legislature.  Even  in  these  cases  such 
opinions  do  not  acquire  a  judicial  character  and  bind  the 


(23)     Pollock  V.  Farmers*  Loan  &  Trust  Co.,  158  U.  S.  601. 


GENERAL  CONCEPTIONS  49 

court  as  precedents.  Being  ordinarily  rendered  without 
the  arguments  of  counsel,  the  court  is  far  less  likely  to 
consider  all  phases  of  the  question;  and  so,  even  though 
it  may  have  given  an  opinion  in  favor  of  the  validity  of 
the  proposed  law  to  the  executive  or  legislature,  it  holds 
itself  free  to  reconsider  the  question  entirely  on  its  merits, 
if  it  afterwards  comes  before  the  court  in  actual  liti- 
gation (24). 

Opinions  thus  given  to  assist  other  departments  of  gov- 
ernment in  the  discharge  of  duties  are  called  ''advisory 
opinions,"  and  the  better  usage  of  government  in  this 
country  tends  to  discourage  the  practice  of  giving  them. 
It  is  thought,  with  reason,  likely  to  draw  the  judges  into 
the  heat  of  partisan  controversies  and  to  impair  public 
confidence  in  their  impartiality,  without  any  correspond- 
ing advantage. 


(24)     Green  v.  Commonwealth,  12  Allen,  155. 

Note.— There  is  no  omission  of  material  here.  The  next  subsections 
begin  with  number  62.  Owing  to  a  mistake  in  the  plates,  there  are  no  sub- 
sections numbered  from  48  to  61. 


PART  II. 
FUNDAMENTAL  RIGHTS. 

CHAPTER  m. 

HISTORY  AND  SCOPE  OF  FUNDAMENTAL  CONSTITUTIONAL 

RIGHTS. 

S.i:cTioN  1.    Classification  of  Constitutional  Pro- 
visions. 

§  62  (1)  Provisions  establishing  the  frame  of  govern- 
ment. Broadly  speaking,  the  provisions  of  American 
constitutions,  state  and  national,  fall  into  four  great 
classes: 

1.  Provisions  dealing  with  the  frame  of  government 
itself.  Of  this  character  are  those  clauses  of  our  consti- 
tutions that  divide  the  government  into  departments,  pro- 
vide fof  ofificials,  regulate  their  qualifications,  duties,  and 
the  modes  of  choosing  them,  distribute  the  powers  of  gov- 
ernment between  the  various  departments,  and  provide 
for  the  manner  of  their  exercise.  These  provisions  are 
mainly  political  in  their  nature,  and  the  careful  discus- 
sion of  them  belongs  rather  to  the  subject  of  political 
science  than  to  the  law  of  private  rights.  They  will  there- 
fore receive  little  attention  in  this  article. 

§  63.  Provisions  guaranteeing  fundamental  private 
rights.  2.  Provisions  securing  certain  fundamental  po- 
litical, religious,  and  civil  rights  to  citizens  or  other  per- 

(1)     See  note  on  page  49.  cq 


FUNDAMENTAL  RIGHTS  51 

sons  within  the  jurisdiction,  mainly  by  prohibiting  the 
exercise  of  governmental  powers  to  the  prejudice  of 
these  rights.  These  are  the  parts  of  our  constitutions 
supremely  important  to  the  individual,  and  these  are  the 
ones  treated  at  greatest  length  in  this  article. 

Both  the  United  States  and  the  states  are  forbidden  to 
infringe  these  fundamental  rights.  The  prohibitions  upon 
the  United  States  are  of  course  contained  in  the  United 
States  constitution.  Those  upon  the  states  are  partly  in 
the  United  States  constitution  and  partly  in  the  separate 
state  constitutions.  For  convenience,  similar  prohibitions, 
whether  upon  the  United  States  or  the  states,  will  be 
treated  together,  although  the  illustrations  used  will  be 
drawn  so  far  as  possible  from  the  decisions  of  the  United 
States  Supreme  Court.  For  instance,  the  Fifth  amend- 
ment of  the  Constitution  forbids  the  United  States  to 
deprive  anj^one  of  liberty  without  due  process  of  law. 
The  Fourteenth  amendment  of  the  Constitution  forbids 
any  state  to  deprive  a  person  of  liberty  without  due 
process  of  law.  All  of  the  state  constitutions  likewise 
forbid  their  governments  to  deprive  anyone  of  liberty 
without  due  process  of  law.  It  may  be  alleged,  therefore, 
that  the  United  States  has  violated  the  Fifth  amendment ; 
or  that  a  state  has  violated  either  the  Fourteenth  amend- 
ment or  its  own  state  constitution,  and  upon  similar  states 
of  fact  it  is  very  likely  that  similar  decisions  will  be  given 
in  regard  to  each  of  these  three  separate  allegations.  Sim- 
ilar prohibitions,  no  matter  in  what  constitution  found, 
may  thus  with  propriety  and  convenience  be  considered 
together. 


52  CONSTITUTIONAL  LAW. 

§  64.  Provisions  regulating  intergovernmental  rela- 
tions under  our  Federal  system.  3.  Provisions  regulating 
the  relations  of  the  states  to  each  other,  to  the  United 
States,  and  to  foreign  states.  They  define  the  govern- 
mental spheres  of  the  states  and  the  United  States  and 
provide  for  the  interrelations  that  exist  in  our  peculiar 
Federal  system.  These  provisions  of  our  constitutions 
are  considered  at  some  length  in  this  article,  as  a  knowl- 
edge of  them  is  necessary  not  only  to  a  comprehension  of 
our  political  system,  but  in  many  eases  to  an  understand- 
ing of  the  substance  of  individual  rights  themselves. 

§  65.  Provisions  regulating  government  in  detail.  4. 
Provisions  regulating  in  detail  the  exercise  of  power,  both 
as  to  substance  and  procedure  by  the  various  departments 
of  government.  The  early  American  constitutions  con- 
tained relatively  few  of  these  provisions,  being  satisfied 
to  secure  fundamental  rights  from  governmental  aggres- 
sion and  to  leave  the  state  governments  a  free  hand  in 
other  respects.  The  later  state  constitutions  have  im- 
mensely increased  the  scope  and  detail  of  such  regula- 
tions. In  very  recent  state  constitutions  the  greater  part 
of  a  lengthy  instrument  of  government  is  taken  up  by 
such  provisions,  which  not  only  deprive  the  principal  gov- 
ernmental departments  of  a  large  proportion  of  their  dis- 
cretionary powers,  but  make  it  increasingly  difficult  to 
enact  any  important  legislation  whatever  that  shall  not 
violate  some  one  of  a  multitude  of  petty  restrictions.  Not 
a  little  of  the  superior  efficiency  of  the  Federal  govern- 
ment is  due  to  the  fact  that  the  United  States  Constitu- 
tion was  adopted  before  such  a  minute  regulation  of  the 


FUNDAMENTAL  RIGHTS  55 

powers  of  government  became  customary.  This  article 
will  not  deal  at  all  with  constitutional  provisions  of  this 
character. 

Section  2.     State  and  Fedeeal  ConstitutionaIj  Guae- 
ANTiEs  Before  1865. 

§  66.  Early  state  constitutions  and  orig^al  Federal 
Constitution.  When  the  United  States  Constitution  was 
adopted  in  1788,  each  of  the  thirteen  original  states  had 
a  constitution  of  its  own,  containing  a  number  of  funda- 
mental guaranties  of  liberty  and  property,  in  the  form 
of  prohibitions  upon  the  various  departments  of  its  state 
government.  These  prohibitions  were  commonly  collected 
in  one  place  in  each  constitution  and  collectively  were 
called  "Bills  of  Eights."  The  national  government  cre- 
ated by  the  Constitution  was  given  extensive  powers,  and 
then  several  prohibitions  were  placed  upon  particular 
methods  of  exercising  these  powers.  In  the  original  Con- 
stitution these  prohibitions  are  mainly  to  be  found  in 
Article  I,  section  9.  Most  of  these  prohibitions  were  not 
to  secure  fundamental  personal  rights,  but  had  certain 
political,  administrative,  economic,  or  social  purposes. 
Two  prohibitions  in  section  9,  however,  secured  funda- 
mental rights  from  aggression  by  the  Federal  govern- 
ment. These  forbid  the  suspension  of  the  writ  of  habeas 
coi'pus,  except  in  case  of  rebellion  or  invasion,  and  pro- 
hibit bills  of  attainder  and  ex  post  facto  laws. 

§  67.  Federal  bill  of  rights.  Amendments  I  to  X. 
One  of  the  principal  objections  urged  against  the  adop- 
tian  of  the  Constitution  by  the  states  was  its  failure  to 


54  CONSTITUTIONAL  LAW. 

provide  a  more  extensive  bill  of  rights,  and  its  opponents 
pointed  out  that  there  was  nothing  to  prevent  the  pro- 
posed national  government,  while  acting  within  the  scope 
of  its  extensive  national  powers,  from  confiscating  prop- 
erty, or  abolishing  jury  trials,  or  forbidding  free  speech, 
or  even  from  putting  men  to  death  by  executive  order 
without  a  trial.  In  several  states  the  opposition  to  the 
new  Constitution  was  so  strong  that  its  adoption  was  only 
secured  by  the  assurance  of  its  advocates  that  amend- 
ments to  it  should  be  speedily  adopted  incorporating  an 
adequate  bill  of  rights.  Accordingly,  one  of  the  early  acts 
of  the  new  government  was  the  submission  to  the  states  of 
a  number  of  amendments  for  this  purpose,  and  ten  of 
these  were  ratified  by  the  necessary  number  of  states  so 
that  they  became  a  part  of  the  Constitution  in  1791.  These 
were  amendments  one  to  ten  (see  Appendix  B).  They 
secured  to  the  people  of  all  of  the  states  as  against  the 
United  States  government  the  principal  fundamental 
rights  which  the  people  in  their  own  state  constitutions 
had  secured  against  their  state  governments.  It  has  been 
repeatedly  decided  that  the  prohibitions  of  the  first  ten 
amendments  apply  only  to  the  Federal  government,  not 
to  the  states  (la). 

§  68.    Federal  prohibitions  upon  the  states  before  1865. 

The  original  Constitution  contained  a  few  express  pro- 
hibitions upon  the  action  of  the  state  governments.  The 
objects  sought  by  these  were  mainly  political,  commer- 
cial, or  connected  with  interstate  comity.    See  Article  I, 


(la)     Barron  v.  Baltimore,  7  Pet.  243. 


FUNDAJVIENTAL  RIGHTS  55 

section  10,  and  Article  IV,  sections  1  and  2.  Of  a  polit- 
ical character,  for  instance,  were  the  prohibitions  in  Arti- 
cle I,  section  10,  forbidding  the  states  to  enter  into  any 
treaties  or  agreements  with  other  states  or  foreign  pow- 
ers, or  to  keep  troops  or  ships  of  war  in  times  of  peace,  or 
to  engage  in  war  unless  in  actual  peril  of  invasion.  Of  a 
commercial  character  were  the  prohibitions  in  the  same 
section  against  coining  money,  emitting  bills  of  credit, 
making  anything  but  gold  and  silver  coin  a  legal  tender, 
taxing  imports  or  exports,  or  levying  tonnage  duties. 
Designed  to  secure  interstate  comity  were  the  prohibi- 
tions in  Article  IV,  sections  1  and  2,  that  each  state  should 
give  full  faith  and  credit  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  state;  that  the  citi- 
zens of  each  state  should  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states ;  and  that  fugi- 
tives from  justice  and  escaping  slaves  from  any  state 
•should  be  delivered  up  in  the  other  states.  But  the  only 
prohibitions  in  the  original  Constitution  designed  to  pro- 
tect state  citizens  in  their  fundamental  rights  against  the 
aggressions  of  their  own  state  governments  were  the  pro- 
hibitions in  Article  I,  section  10,  against  a  state 's  passing 
bills  of  attainder,  ex  post  facto  laws,  or  laws  impairing  the 
obligation  of  contracts.  Even  the  last  of  these  was  intro- 
duced chiefly  on  account  of  commercial  considerations,  for 
there  may  be  many  laws  impairing  the  obligation  of  con- 
tracts, like  bankruptcy  laws,  for  instance,  that  do  not 
deprive  men  of  fundamental  rights.  The  framers  of  the 
Constitution  had  abundant  faith  that  the  inhabitants  of 
each  state  might  be  trusted  to  protect  themselves  in  their 


56  CONSTITUTIONAL  LAW. 

own  state  constitutions  against  their  own  state  govern- 
ments, and  that  it  was  not  necessary  for  the  nation  to 
protect  individual  rights  against  local  tyranny.  The  pro- 
hibitions against  bills  of  attainder  and  ex  post  facto  laws 
were  doubtless  largely  designed  to  protect  resident  loyal- 
ists who  had  adhered  to  Great  Britain  during  the  Revolu- 
tion, and  so  were  evoked  by  the  demands  of  a  passing 
political  situation  rather  than  by  a  conviction  that  the 
state  governments  could  not  ordinarily  be  trusted  in  these 
respects  as  regards  their  own  citizens.  The  Eleventh 
Amendment,  adopted  in  1798,  enlarged  the  immunity  of 
the  states  by  protecting  them  from  the  suits  of  individ- 
uals, except  with  their  consent ;  and  the  Twelfth  Amend- 
ment, adopted  in  1804,  merely  regulated  the  details  of 
presidential  elections. 

Section  3.     Scope  or  Later  Amendments  to  Fbdebaij 
Constitution. 


§  69.  Thirteenth  Amendment.  It  was  not  until  three 
generations  after  the  adoption  of  the  Constitution  and 
in  the  heat  of  passion  engendered  by  a  great  civil  war 
that  the  power  of  the  states  was  further  restricted  by  con- 
stitutional amendment.  The  existence  of  slavery  caused 
the  Civil  war,  and  it  was  inevitable  that  the  institution 
should  not  survive  the  victory  of  the  north.  Lee  surren- 
dered in  April,  1865,  and  on  December  18th  of  the  same 
year  the  Thirteenth  Amendment,  duly  ratified  by  three- 
quarters  of  the  states,  was  proclaimed  to  be  in  force  as 
a  part  of  the  United  States  Constitution.  The  amend- 
ment reads: 


FUNDAMENTAL  RIGHTS  57 

"Section  1.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction. 

**  Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation." 

This  amendment,  as  has  been  frequently  said,  is  self- 
executing  so  far  as  its  terms  are  applicable  to  any  exist- 
ing state  of  circumstances.  By  its  own  phrases  it  abol- 
ished slavery  and  established  freedom,  and  the  power  of 
Congress  to  enforce  it  authorizes  the  direct  punishment 
by  the  Federal  government  of  all  persons  who  enslave  or 
attempt  to  enslave  others.  It  operates  directly  upon  all 
individuals  within  the  jurisdiction  of  the  United  States 
(2).  State  legislation  authorizing  slavery,  and  all  acts 
of  individuals  tending  to  establish  it,  whether  authorized 
by  state  law  or  not,  are  void  and  illegal,  and  all  individual 
acts  in  pursuance  thereof  may  be  punished  by  the  United 
States.    See  §§  101-4,  below. 

§70.  Adoption  of  Fourteenth  Amendment.  A  brief 
experience  sufficed  to  show  that  while  the  Thirteenth 
Amendment  had  freed  the  slaves  it  would  not  protect 
them  against  a  multitude  of  oppressive  and  discrimina- 
ting laws,  which  were  likely  to  be  enacted  with  reference 
to  the  late  bondmen  as  soon  as  the  dominant  elements  of 
the  white  population  in  the  southern  states  regained  con- 
trol of  their  state  governments.  To  prevent  this,  among 
other  purposes,  the  Fourteenth  Amendment  was  proposed 


(2)     Clyatt  V.  U.  S.,  197  U.  S.  207,  216-7,  quoting  from  Civil  Rights 
Cases,  109  U.  S.  3. 


58  CONSTITUTIONAL  LAW. 

aud  was  proclaimed  to  be  in  force  in  July,  1868.  Sections 
1  aud  5  of  this  are  of  pennanent  and  increasing  impor- 
tance.   They  read  as  follows : 

*' Section  1.  All  persons  bom  or  naturalized  in  tlie 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  state  wherein 
they  reside.  No  state  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States ;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

' '  Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article." 

§  71.  Analysis  of  Fourteenth  Amendment.  The  citi- 
zenship clause  in  the  Fourteenth  Amendment  is  discussed 
in  Chapter  IV,  §§  76-85,  below.  The  remaining  clauses  in 
section  1  contain  three  sweeping  prohibitions  upon  state 
governmental  action;  (1)  no  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  (2)  no  state  shall  deprive 
any  person  of  life,  liberty,  or  property,  without  due  proc- 
ess of  law;  (3)  no  state  shall  deny  to  any  person  witltn  its 
jurisdiction  the  equal  protection  of  the  laws.  The  due 
process  clause  is  copied  from  the  Fifth  Amendment,  whe^-e 
it  is  a  prohibition  upon  the  United  States  government. 
The  other  two  clauses  impose  limitations  upon  the  state 
governments  that  are  not  expressly  imposed  upon  the 
United  States  government  in  any  other  part  of  the  Consti- 
tution.   Each  of  thefee  clauses  will  be  made  the  subject  of 


FUNDAMENTAL  RIGHTS  59 

a  separate  discussion  in  other  parts  of  this  article  and 
the  last  two  clauses  are  of  such  immense  importance  that 
they  will  form  the  subject  of  several  chapters.  Just  here 
we  shall  inquire  against  whom  these  provisions  are  en- 
forceable by  Congressional  legislation. 

§  72.  Fourteenth  Amendment  forbids  state  action  only. 
In  1875  Congress  i^assed  a  law  known  as  the  Civil  Rights 
act.  It  provided  that  all  persons  in  the  United  States 
should  be  entitled  to  equal  privileges  in  inns,  public  con- 
veyances, and  public  places  of  amusement,  without  dis- 
crimination on  account  of  race,  color,  or  previous  condi- 
tion of  servitude.  Any  person  who  denied  such  equal 
privileges  to  others  was  made  guilty  of  an  offence  against 
the  United  States  and  liable  in  damages  to  the  person  ag- 
grieved. Various  persons  were  indicted  under  this  stat- 
ute for  denying  to  negroes  equal  privileges  in  hotels, 
theatres,  and  upon  railroad  trains.  Their  cases  were  car- 
ried to  the  United  States  Supreme  Court  and  the  statute 
was  held  unconstitutional.  The  court  said,  in  discussing 
the  character  of  the  provisions  in  the  Fourteenth 
Amendment : 

*'It  is  state  action  of  a  particular  character  that  is  pro- 
hibited. Individual  invasion  of  individual  rights  is  not 
the  subject-matter  of  the  amendment.  It  has  a  deeper 
and  broader  scope.  It  nullifies  and  makes  void  all  state 
legislation,  and  state  action  of  every  kind,  which  impairs 
the  privileges  and  immunities  of  citizens  of  the  United 
States,  or  which  injures  them  in  life,  liberty  or  property 
without  due  process  of  law,  or  which  denies  to  any  of  them 
the  equal  protection  of  the  laws.    It  not  only  does  this, 


60  CONSTITUTIONAL  LAW. 

but,  in  order  that  the  national  will,  thus  declared,  may  not 
be  a  mere  brutum  t'ulmen,  the  last  section  of  the  amend- 
ment invests  Congress  with  power  to  enforce  it  by  appro- 
priate legislation  for  correcting  the  effects  of  such  pro- 
hibited state  laws  and  state  acts,  and  thus  to  render  them 
effectually  null,  void,  and  innocuous.  This  is  the  legisla- 
tive power  conferred  upon  Congress,  and  this  is  the  whole 
of  it.  .  .  .  And  so  in  the  present  case,  until  some 
state  law  has  been  passed,  or  some  state  action  through 
its  oiScers  or  agents  has  been  taken,  adverse  to  the  rights 
of  citizens  sought  to  be  protected  by  the  Fourteenth 
Amendment,  no  legislation  of  the  United  States  under  said 
amendment,  nor  any  proceeding  under  such  legislation, 
can  be  called  into  activity;  for  the  prohibitions  of  the 
amendment  are  against  state  laws  and  acts  done  under 
state  authority.  .  .  .  An  inspection  of  the  law  shows 
that  it  makes  no  reference  whatever  to  any  supposed  or 
apprehended  violation  of  the  Fourteenth  Amendment  on 
the  part  of  the  states.  ...  It  steps  into  the  domain 
of  local  jurisprudence  and  lays  down  rules  for  the  con- 
duct of  individuals  in  society  towards  each  other,  and 
imposes  sanctions  for  the  enforcement  of  those  rules, 
without  referring  in  any  manner  to  any  supposed  action 
of  the  state  or  its  authorities.     .     .    . 

"In  this  connection  it  is  proper  to  state  that  civil  rights, 
such  as  are  guaranteed  by  the  Constitution  against  state 
aggression,  cannot  be  impaired  by  the  wrongful  acts  of 
individuals,  unsupported  by  state  authority  in  the  shape 
of  laws,  customs,  or  judicial  or  executive  proceedings. 
The  wrongful  act  of  an  individual,  unsupported  by  any 


FUNDAMENTAL  RIGHTS  61 

such  authority,  is  simply  a  private  wrong,  or  a  crime  of 
that  individual ;  an  invasion  of  the  rights  of  the  injured 
party,  it  is  true,  whether  they  affect  his  person,  his  prop- 
erty, or  his  reputation ;  but  if  not  sanctioned  in  some  way 
by  the  state,  or  not  done  under  state  authority,  his  rights 
remain  in  full  force,  and  may  presumably  be  vindicated 
by  resort  to  the  laws  of  the  state  for  redress.'* 

§  73.  What  amounts  to  state  action.  It  being  well 
settled  that  the  prohibitions  in  the  Fourteenth  Amend- 
ment, section  1,  apply  to  the  states  rather  than  to  individ- 
uals, it  remains  to  be  considered  what  kind  of  action  is 
treated  as  that  of  a  state  for  the  purpose  of  the  amend- 
ment. A  United  States  statute  forbade  any  oflScer 
charged  with  the  duty  of  summoning  jurors  to  exclude 
any  citizen  on  account  of  race,  color,  or  previous  condi- 
tion of  servitude.  A  Virginia  county  judge,  although  not 
authorized  thereto  by  Virginia  law,  excluded  all  colored 
men  from  the  juries  selected  by  him.  Upon  the  question 
whether  his  act  was  that  of  the  state,  so  that  he  could  be 
punished  under  this  statute,  the  court  said : 

''The  prohibitions  of  the  Fourteenth  Amendment  are 
addressed  to  the  states.  .  .  .  They  have  reference  to 
actions  of  the  political  body  denominated  a  state,  by 
whatever  instruments  or  in  whatever  modes  that  action 
may  be  taken.  A  state  acts  by  its  legislative,  its  execu- 
tive, or  its  judicial  authorities.  It  can  act  in  no  other 
way.  The  constitutional  provision,  therefore,  must  mean 
that  no  agency  of  the  state  or  of  the  oflficers  or  agents  by 
whom  its  powers  are  exerted,  shall  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Vol.  XU— 6 


62  CONSTITUTIONAL  LAW. 

AVhoever,  by  virtue  of  public  position  under  a  state  gov- 
erumcut,  deprives  another  of  property,  life,  or  liberty, 
without  due  process  of  law,  or  denies  or  takes  away  the 
equal  protection  of  the  laws,  violates  the  constitutional  in- 
hibition ;  and  as  he  acts  in  the  name  and  for  the  state,  and 
is  clothed  with  the  state's  power,  his  act  is  that  of  the 
state.  This  must  be  so,  or  the  constitutional  prohibition 
has  no  meaning"  (4). 

The  Fourteenth  Amendment  therefore  enables  Congress 
to  act  against  individuals  only  in  so  far  as  the  latter  are 
acting  in  an  official  capacity  as  representatives  of  a  state. 
Acts  of  a  state  in  violation  of  the  Fourteenth  Amend- 
ment are  void  and  may  be  disregarded  with  impunity  by 
persons  affected  by  them,  but  Congressional  action  can 
go  no  farther  than  indicated. 

§  74.  What  are  privileges  and  immunities  of  citizens 
of  United  States?  The  second  sentence  of  the  Fourteenth 
Amendment,  section  1,  provides,  * '  No  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States."  With  the 
other  clauses  in  the  section  this  one  was  adopted  primarily 
to  protect  the  newly  freed  slaves  from  oppression  at  the 
hands  of  the  state  governments  in  the  south.  It  is,  per- 
haps, doubtful  just  what  privileges  or  immunities  were 
meant  to  be  protected  from  abridgment  by  those  who 
proposed  the  amendment.  The  Congressional  debates  of 
the  time  leave  the  matter  in  doubt,  and  perhaps  most  of 


(3)  Civil  Rights  Cases,  109  U.  S.  3,  11  ff. 

(4)  Ex  parte  Virginia,  100  U.  S.  339. 


FUNDAMENTAL  RIGHTS  63 

those  who  voted  for  the  amendment  had  no  clear  concep- 
tion of  the  exact  scope  of  this  clause. 

The  first  case  under  the  Fourteenth  Amendment 
brought  before  the  Supreme  Court  involved  the  meaning 
of  this  clause.  Louisiana  passed  a  law  forbidding  indi- 
viduals to  maintain  slaughter  houses  in  New  Orleans  and 
its  vicinity,  and  conferred  upon  a  single  corporation  the 
exclusive  right  for  twenty-five  years  to  maintain  in  this 
territory  places  for  killing  animals  for  meat.  Various 
individual  butchers  alleged  that  this  law  deprived  them  of 
the  privileges  and  immunities  guaranteed  by  this  clause 
of  the  Fourteenth  Amendment.  The  Supreme  Court 
said: 

*'It  is  quite  clear  that  there  is  a  citizenship  of  the 
United  States,  and  a  citizenship  of  the  state,  which  are 
distinct  from  each  other.  .  .  .  The  paragraph  mainly 
relied  upon  by  the  plaintiffs  speaks  only  of  privileges  and 
immunities  of  citizens  of  the  United  States,  and  does  not 
speak  of  those  of  citizens  of  the  several  states.  ...  It 
is  only  the  former  which  are  placed  by  this  section  under 
the  protection  of  the  Federal  Constitution,  and  the  latter, 
whatever  they  may  be,  are  not  intended  to  have  any  ad- 
ditional protection  by  this  paragraph  of  the  amendment. 
.  .  .  The  first  occurrence  of  the  words  *  privileges  and 
immunities  *  in  our  constitutional  history  is  to^  be  found 
in  the  Fourth  Article  of  the  old  Confederation.  .  .  . 
In  the  Constitution  of  tlie  United  States,  the  correspond- 
ing provision  is  found  in  section  2  of  tfie  Fourth  Article 
in  the  following  words :  *  The  citizens  of  each  state  shall 
be  entitled  to  all  of  the  privileges  and  immunities  of  citi- 


64  CONSTITUTIONAL  LAW. 

zens  of  the  several  states.*  .  .  .  Up  to  the  adoption  of 
the  recent  amendments,  no  claim  or  pretense  was  set  up 
that  those  rights  depended  on  the  Federal  government  for 
their  existence  or  protection,  beyond  the  veiy  few  express 
limitations  which  the  Federal  Constitution  imposed  upon 
the  states — such,  for  instance,  as  the  prohibition  against 
ex  post  facto  laws,  bills  of  attainder,  and  laws  impairing 
the  obligation  of  contracts.  .  .  .  Was  it  the  purpose 
of  the  Fourteenth  Amendment,  by  the  simple  declaration 
that  no  state  should  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of  the 
United  States,  to  transfer  the  security  and  protection  of 
all  the  civil  rights  which  we  have  mentioned,  from  the 
states  to  the  Federal  government!  And  where  it  is  de- 
clared that  Congress  shall  have  the  power  to  enforce  that 
article,  was  it  intended  to  bring  within  the  power  of  Con- 
gress the  entire  domain  of  civil  rights  heretofore  belong- 
ing exclusively  to  the  states? 

''All  this  and  more  must  follow,  if  the  proposition  of 
the  plaintiffs  in  error  be  sound.  For  not  only  are  these 
rights  subject  to  the  control  of  Congress  whenever  in  its 
discretion  any  of  them  are  supposed  to  be  abridged  by 
state  legislation,  but  that  body  may  also  pass  laws  in  ad- 
vance, limiting  and  restricting  the  exercise  of  legislative 
power  by  the  states,  in  their  most  ordinary  and  usual 
functions,  as  in  its  judgment  it  may  think  joroper  on  all 
such  subjects.  .  .  .  The  argument,  we  admit,  is  not 
iUways  the  most  conclusive  which  is  drawn  from  the  con- 
sequences urged  against  the  adoption  of  a  particular  con- 
struction of  an  instrument.    But  when,  as  in  the  case  be- 


FUNDAMENTAL  RIGHTS  65 

fore  us,  these  consequences  are  so  serious,  so  far  reaching 
and  pervading,  so  great  a  departure  from  the  structure 
and  spirit  of  our  institutions ;  when  the  effect  is  to  fetter 
and  degi'ade  the  state  governments  by  subjecting  them  to 
the  control  of  Congress  in  the  exercise  of  powers  hereto- 
fore universally  conceded  to  them  of  the  most  ordinary 
and  fundamental  character;  when,  in  fact,  it  radically 
changes  the  whole  theory  of  the  relations  of  the  state  and 
Federal  governments  to  each  other  and  of  both  these  gov- 
ernments to  the  people ;  the  argument  has  a  force  that  ia 
irresistible,  in  the  absence  of  language  which  expresses 
such  a  purpose  too  clearly  to  admit  of  doubt"  (5). 

Privileges  and  immunities  of  citizens  of  the  United 
States  are  those  derived  from  the  Federal  government. 
Constitution,  and  laws,  like  the  right  to  use  the  navigable 
waters  of  the  country,  to  engage  in  interstate  commerce, 
to  demand  Federal  protection  when  out  of  the  country,  to 
become  a  citizen  according  to  the  Fourteenth  amendment, 
and  the  other  rights  secured  by  the  Thirteenth,  Four- 
teenth, and  Fifteenth  Amendments. 

While  the  Supreme  Court  has  since  the  Slaughter 
House  cases  given  to  other  parts  of  the  Fourteenth 
Amendment  a  more  extended  application  than  perhaps 
was  then  foreseen,  the  decision  in  the  Slaughter  House 
cases  is  usually  regarded  as  important,  in  that  it  checked 
at  the  outset  a  natural  tendency  towards  rapid  centraliza- 
tion in  the  government,  growing  out  of  the  events  of  the 
Civil  war. 


(6)     Slaughter  House  Cases,  16  Wall.  36. 


GG  CONSTITUTIONAL  LAW 

§  75.  Fifteenth  Amendment.  This  amendment  to  the 
Constitution  contains  a  prohibition  against  both  the 
states  and  the  United  States.  It  was  adopted  in  March, 
1870,  in  the  following  words : 

"Section  1.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  state  on  account  of  race,  color,  or  previ- 
ous condition  of  servitude. 

'  *  Section  2.  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation." 

This,  like  the  Fourteenth  Amendment,  is  in  terms  a  pro- 
hibition upon  governmental  action,  not  upon  the  action 
of  individuals  who  are  not  acting  as  official  representa- 
tives of  the  state  or  Federal  governments.  It  has  ac- 
cordingly been  held  that  this  amendment  gives  Congress 
no  power  to  punish  individuals  who  by  bribery  or  intimi- 
dation prevent  colored  men  from  voting  in  a  state  (6). 
Congress  could,  of  course,  punish  individuals  for  miscon- 
duct at  Federal  elections,  because  the  Constitution  (Art  I, 
sec.  4)  gives  Congress  power  to  regulate  these;  but  the 
Fifteenth  Amendment  confers  no  such  power  upon  Con- 
gress as  to  elections  generally. 


(6)     James  v.  Bowman,  190  U.  S.  127. 


CHAPTER  IV. 
POLITICAL  RIGHTS. 

Section  1.     Citizenship. 

§  76.  Federal  citizenship  before  Fourteenth  Amend- 
ment. The  basis  of  English  nationality  under  the  com- 
mon law  was  birth  within  the  allegiance  of  the  British 
crown  and  subject  to  its  protection.  Children  of  aliens, 
if  born  within  the  British  dominions,  were  natural-born 
subjects  of  the  crown.  When  the  United  States  Constitu- 
tion was  adopted  it  recognized  a  citizenship  of  the  United 
States,  but  made  no  attempt  to  define  it.  Representatives 
and  senators,  for  instance,  were  required  to  have  been 
respectively  seven  and  nine  j'^ears  citizens  of  the  United 
States,  and  the  President  was  required  to  be  "  a  natural- 
born  citizen  or  a  citizen  of  the  United  States  at  the  time 
of  the  adoption  of  this  Constitution."  As  regards  white 
persons,  at  least,  it  has  been  judicially  afiSrmed  that  the 
English  rule  of  nationality  by  birth  was  in  force  in  all 

i  of  the  English  colonies  of  America  and  in  the  United 
States  afterwards  (1).  Before  the  Civil  war  several 
states  had  expressly  recognized  free  negroes  as  citizens, 

!  but  in  the  Dred  Scott  case  three  judges  were  of  the  opin- 
ion that  no  native  born  slave  or  descendant  of  slave  par- 


(1)     United  States  v.  Wong  Kim  Arlj,  1G9  U.  S.  649,  658. 

67 


68  CONSTITUTIONAL  LAW. 

ents  could  become  a  citizen  of  the  United  States  by  birth, 
on  account  of  Article  IV,  section  2,  of  the  Constitution, 
which  requires  each  state  to  give  equal  privileges  to  the 
citizens  of  other  states.  It  was  thought  that  the  slave 
states  could  not  have  intended  a  contrary  doctrine  when 
ratifying  the  Constitution  (2). 

^  77.  Citizenship  by  birth  under  Fourteenth  Amend- 
ment. After  the  war  a  definition  of  citizenship  was  made 
in  the  Fourteenth  Amendment,  which  provides:  "All 
persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside." 
Under  the  Chinese  exclusion  acts  the  question  arose 
whether  a  child  of  alien  Chinese  parents  born  in  Cali- 
fornia was  a  citizen  of  the  United  States,  and  therefore 
not  deportable  under  the  exclusion  acts.  It  was  held  that 
he  was  a  United  States  citizen,  although  his  parents  could 
not  have  been  naturalized  under  the  existing  laws,  and 
that  the  Fourteenth  Amendment  enacted  into  the  Consti- 
tution the  English  rule  of  nationality  by  birth  within  the 
allegiance  (3). 

§  78.  Limitations  upon  citizenship  by  birth.  The 
Fourteenth  Amendment,  however,  by  its  own  terms  falls 
somewhat  short  of  conferring  citizenship  upon  everyone 
born  within  the  dominions  over  which  the  United  States 
government  is  sovereign.  To  come  within  the  Fourteenth 
Amendment,  a  person  must  be  born  "within  the  United 
States"  and  must  also  be  "subject  to  the  jurisdiction 


(2)  Dred  Scott  v.  Sandford,  39  How.  393,  404-23. 

(3)  United  ytates  v.  Wong  Kim  Arli,  169  U.  S.  649. 


FUNDAMENTAL  RIGHTS  69 

thereof."    These  phrases  suggest  limitations  upon  citi- 
zenship by  birth  that  now  demand  consideration. 

§79.  Meaning  of  "born  within  the  United  States." 
What  do  the  words  ''United  States"  mean  in  the  citizen- 
ship clause  of  the  Fourteenth  Amendment?  Several  dif- 
ferent meanings  might  be  attributed  to  them.  1.  They 
might  mean  only  the  states  that  have  been  admitted  to  the 
Union.  In  this  view,  a  person  born  in  one  of  the  terri- 
tories, like  Hawaii  or  Alaska,  would  not  be  a  citizen  by 
birth  by  reason  of  the  Fourteenth  Amendment,  though  he 
might  be  through  some  act  of  Congress.  2.  The  words  may 
mean  the  admitted  states  plus  such  other  territory  as  may 
have  been  made  by  statute  or  treaty  an  integral  part  of 
our  country,  as  contrasted  with  territory  that  is  still  held 
in  the  condition  of  a  colony.  Under  this  theory  the 
territory  of  Alaska,  having  been  incorporated  into 
the  body  of  our  country  by  treaty  and  acts  of  Congress, 
would  be  a  part  of  the  United  States,  but  Porto  Eico, 
Guam  and  the  Philippine  Islands  would  not.  3.  The 
words  might  possibly  be  construed  to  include  all  territory 
over  which  our  government,  either  permanently  or  for  an 
indefinite  period,  exercises  sovereign  jDOwers.  The  inter- 
pretation, making  the  words  ''United  States"  the  name  of 
the  entire  American  Empire,  would  give  citizenship  to 
everyone  born  in  the  ceded  Spanish  colonies  since  the 
treaty  of  1898. 

It  is  scarcely  likely  that  the  latter  interpretation  will 
prevail,  as  the  Spanish  treaty  of  peace  of  1898  provided 
in  Article  10:  "The  civil  rights  and  political  status  of 
the  native  inhabitants  of  the  territories  hereby  ceded  to 


70  CONSTITUTIONAL  LAW. 

the  United  States  shall  be  determined  by  the  Congress." 
The  intention  of  this  article  apparently  is  to  leave  the 
question  of  citizenship  to  the  discretion  of  Congress, 
rather  than  to  settle  it  irrevocably  under  the  Fourteenth 
Amendment, 

As  between  interpretations  1  and  2  above,  the  second 
is  perhaps  the  more  likely  to  be  adopted  when  the  ques- 
tion arises,  especially  in  view  of  the  theory  the  Supreme 
Court  has  recently  adopted  concerning  the  power  of  the 
political  departments  of  our  government  to  incorporate 
territory,  although  not  yet  a  state,  into  our  country  so 
that  it  is  permanently  a  part  of  it,  as  contrasted  with  ter- 
ritory having  merely  a  colonial  status.    See  §  260,  below. 

§80.  Persons  excluded  as  not  "subject  to  the  juris- 
diction." "What  qualification  upon  citizenship  by  birth 
is  introduced  by  the  phrase,  "and  subject  to  the  jurisdic- 
tion thereof!"  This  has  been  judicially  explained  to 
exclude  from  citizenship  five  classes  of  persons  who  have 
been  actually  born  within  the  territorial  limits  of  the 
United  States.  The  exclusion  of  four  of  these  classes  re- 
sults from  the  rules  of  public  international  law  in  view  of 
which  the  Fourteenth  Amendment  was  adopted  and  in 
the  light  of  which  it  has  to  be  interpreted.  The  fifth  class 
is  one  peculiar  to  our  own  government,  but  having  an 
origin  and  history  that  as  fully  entitle  it  to  exclusion  as 
the  other  four. 

§  81.  (a)  Children  of  diplomatic  representatives.  By 
a  fiction  of  international  law  each  organized  government, 
in  the  absence  of  its  own  express  statute  to  the  contrary, 
regards  the  more  important  diplomatic  representatives 


FUNDAMENTAL  RIGHTS  71 

of  foreign  governments  as  remaining  subject  to  their  own 
governments  only,  despite  their  actual  residence  in  the 
country  to  which  they  are  sent.  The  children  of  am- 
bassadors and  public  ministers,  therefore,  although  bom 
within  the  United  States,  are  not  "subject  to  the  jurisdic- 
tion thereof"  and  so  are  not  citizens  of  the  United  States. 
This  exemption,  however,  does  not  apply  to  the  children 
of  consuls  nor  to  other  foreign  agents  whose  duties  are 
not  diplomatic.  Of  course  it  would  apply  to  the  principal 
executive  officers  of  foreign  nations  themselves. 

82.  (b)  Children  born  on  foreign  public  vessels. 
Similarly  the  public  vessels  of  a  foreign  country  are 
deemed  by  international  law  to  remain  subject  to  the  juris- 
diction of  their  own  flag,  even  though  wholly  within  the 
domestic  waters  of  another  country.  Children  bom  upon 
such  vessels  in  United  States  waters,  therefore,  are  not 
citizens  of  the  United  States.  The  principal  class  of  pub- 
lic vessels  is  ships  of  war,  though  any  other  vessel  repre- 
senting the  sovereignty  of  a  nation  is  similarly  treated. 
Private  vessels  are  not  within  the  rule. 

§  83.  (c)  Children  of  public  enemies  in  hostile  occupa- 
tion of  territory.  The  children  of  enemies  bom  during 
the  hostile  occupation  of  our  territory  are  not  born  sub- 
ject to  the  jurisdiction  of  the  United  States.  The  place 
of  their  birth  is  not  at  the  time  actually  subject  to  our 
governmental  control,  and  the  parents,  being  hostile  ene- 
mies, owe  no  allegiance  to  our  government.  This  situa- 
tion existed  in  Castine  and  other  towns  of  eastern  Maine 
during  the  war  of  1812,  when  the  eastern  part  of  that 


72  CONSTITUTIONAL  LAW. 

btate  was  for  some  time  In  the  actual  control  of  British 
troops. 

§  84.  (d)  Expatriated  persons.  Persons  who,  though 
born  or  naturalized  in  the  United  States,  have  renounced 
their  allegiance  to  our  government  with  its  consent,  and 
have  thus  dissolved  their  political  connection  with  the 
country,  are  no  longer  citizens.  Such  renunciation  is 
called  expatriation,  and  is  now  permitted,  subject  to  cer- 
tain qualifications,  by  most  civilized  governments.  It  was 
expressly  recognized  by  Congress  in  1868  (4). 

§  85.  (e)  Tribal  Indians.  The  last  class  of  persons, 
who,  though  born  within  the  United  States,  are  not  citi- 
zens, are  the  tribal  Indians.  When  the  Constitution  was 
adopted,  large  tracts  of  territory  within  the  United  Statee 
were  occupied  by  still  powerful  Indian  tribes,  the  mem- 
bers of  which  regarded  themselves  as  owing  a  direct  al- 
legiance to  the  tribe,  rather  than  to  the  United  States 
government.  In  an  international  sense  these  tribal  In- 
dians were  subject  to  the  jurisdiction  of  the  United  States 
because  they  were  within  our  boundaries  and  did  not  owe 
allegiance  to  any  foreign  power,  yet  our  state  and  national 
governments  had  always  dealt  with  these  tribes  upon  the 
footing  of  their  quasi-independence.  Treaties  were  made 
with  them,  defining  their  commercial  and  territorial 
rights,  and  until  very  recently  all  of  our  government's 
dealings  with  the  Indian  tribes  were  carried  on  in  this 
anomalous  fashion.  Historically,  therefore,  tribal  In- 
dians, so  long  as  the  tribal  relation  continued,  were  not 
regarded  as  subject  to  the  jurisdiction  of  the  United 


(4)     U.  S.  R.  S.  §  1999-2000. 


FUNDAMENTAL  RIGHTS  73 

States  within  the  meaning  of  the  citizenship  clause  of  the 
Fourteenth  Amendment.  A  tribal  Indian  who  volun- 
tarily left  his  tribe  and  took  up  his  residence  among  white 
citizens  in  a  state,  and  adopted  the  habits  of  civilized  life, 
could  not  thereby  become  a  citizen  of  the  United  States 
without  the  consent  of  Congress  (5). 

In  1887  a  United  States  statute  conferred  citizenship 
upon  such  Indians  as  thereafter  should  separate  them- 
selves from  their  tribes  and  adopted  the  habits  of  civil- 
ized life. 

§  86.  Status  of  native  inhabitants  of  ceded  Spanish 
colonies.  Assuming  that  the  native  inhabitants  of  the 
ceded  Spanish  colonies  are  not  citizens  of  the  United 
States,  it  is  apparent  that  they  are  not  aliens,  inasmuch 
as  they  owe  complete  allegiance  to  our  government  as  the 
sole  sovereign  of  the  territory  in  which  they  reside.  This 
has  already  been  decided  by  the  United  States  Supreme 
Court  (6).  Their  relation  to  our  government  is  similar 
to  that  of  British  subjects  in  the  colonies  of  the  British 
Empire.  They  owe  complete  allegiance  and  are  fully 
subject  to  the  control  of  our  national  government,  but 
they  have  not  the  full  rights  of  citizenship.  The  word 
''subjects^'  seems  by  international  usage  an  appropriate 
term  for  persons  in  their  condition,  but  there  has  been 
some  reluctance  to  use  it,  perhaps  because  the  term  is 
!  distasteful  to  American  political  susceptibilities.     The 


(5)  Elk  V.  Wilkins,  112  U.  S.  94. 

(6)  Gonzales  v.  Williams,  192  U.  S.  1. 


74  CONSTITUTIONAL  LAW. 

word  "nationals"  lias  been  suggested  for  use  as  a  sub- 
stitute (7). 

§  87.  Status  of  corporations.  Corporations  are  not 
citizens  within  the  meaning  of  any  clause  of  the  Constitu- 
tion, except  that  giving  the  Federal  courts  jurisdiction 
of  suits  between  citizens  of  different  states  (8).  For  the 
interpretation  of  this  clause,  see  §363,  below. 

Section  2.    Naturalization. 

§  88.  Exclusive  power  of  Federal  government  over  na- 
tional citizenship.  Article  I,  section  8,  §  4  of  the  United 
States  Constitution  gives  Congress  power  to  establish  a 
uniform  rule  of  naturalization.  It  was  decided  in  1817 
that  this  power  was  of  such  a  nature  that  it  ought  to  be 
exercised  exclusively  by  the  United  States,  although  the 
Constitution  does  not  expressly  deny  it  to  the  states  (9). 
Another  section  of  the  Constitution  (Article  IV,  section 
2)  requires  each  state  to  grant  to  the  citizens  of  other 
states  all  privileges  in  it  that  it  permits  to  its  own  citi- 
zens, and  it  was  naturally  thought  that  a  single  state, 
without  the  consent  of  the  others,  ought  not  to  be  allowed 
to  confer  full  national  citizenship  upon  aliens  who  might 
then  demand  the  rights  of  citizens  in  any  other  state  in 
the  Union. 

The  present  naturalization  laws  of  the  United  States 
permit  naturalization  only  to  persons  of  the  white  and 
African  races  and  to  inhabitants  of  our  colonies  who  be- 


(7)  F.  R.  Coudert,  Jr.  in  3  Columbia  Law  Review,  13. 

(8)  Paul  V.  Virginia,  8  Wall.  168. 

(9)  Chirac  v.  Chirac,  2  Wheat.  259. 


FUNDAJtIENTAL  RIGHTS  75 

come  residents  of  a  state  or  organized  territory  (10). 
Mexicans  are  considered  white  persons.  Japanese  and 
Chinese  cannot,  at  present,  become  United  States  citizens 
unless  born  in  this  country. 

§  89.  Collective  naturalization.  Although  statutes 
commonly  require  aliens  to  become  naturalized  by  ma- 
king individual  application  to  some  court  or  officer  and 
swearing  allegiance  to  the  United  States  government, 
they  may  also  be  naturalized  collectively,  without  any 
individual  proceedings  or  the  requirement  of  oaths  of 
allegiance.  The  act  of  Congress  making  United  Statea 
citizens  of  Indians  who  abandon  their  tribes,  mentioned 
above  (§  85),  is  an  illustration  of  this.  Another  is  occa- 
sionally presented  by  the  terms  upon  which  a  new  state  is 
admitted  to  the  Union,  in  which  aliens  resident  therein 
may  be  collectively  recognized  as  voters  and  members  of 
the  new  political  community  (11). 

§  90.  Power  to  confer  state  citizenship.  Before  the 
Fourteenth  Amendment  it  was  admitted  that  a  state 
might  confer  a  local  citizenship,  valid  within  that  state, 
upon  any  person  it  pleased.  It  was  only  the  power  to 
make  national  citizens  who  might  carry  their  citizenship 
into  other  states,  that  was  exclusively  for  the  Federal 
government  (12).  The  Fourteenth  Amendment  now  pro- 
vides that  persons  born  or  naturalized  within  the  United 
States  shall  not  only  be  citizens  of  the  United  States,  but 
citizens  of  the  state  wherein  they  reside.    It  is  arguable 


(10)  U.  S.  R.  S.  §  2169 ;  Acts  of  1906,  c.  3592. 

(11)  Boyd  V.  Thayer,  143  U.  S.  135. 

(12)  Scott  V.   Sandford,  19  How.  393,  405-6,  579-80,  586. 


76  CONSTITUTIONAL  LAW. 

that  this  was  intended  to  provide  an  exclusive  method 
of  obtiiiuing  state  citizenship,  as  well  as  United  States 
citizenship,  but  probably  it  has  not  changed  the  former 
rule ;  at  any  rate  it  has  not  limited  the  power  of  Congress 
to  naturalize  persons,  even  though  the  latter  be  not  at 
the  time  of  naturalization  subject  to  the  jurisdiction  of 
the  United  States.  Children  bom  abroad  of  American 
parents,  for  instance,  are  made  American  citizens  by  an 
act  of  Congress,  subject  of  course  to  the  consent  of  the 
country  in  which  they  are  bom,  during  the  time  of  their 
residence  there  (13). 

Section  3.     Suffrage. 

§  91.  Eaxly  qualifications  for  state  suffrage.  When 
the  newly-born  American  states  set  up  independent  gov-  | 
ernments  in  the  course  of  the  Revolutionary  war,  the 
written  constitutions  which  they  adopted  contained  care- 
ful definitions  of  the  inhabitants  admitted  to  the  suffrage. 
In  the  main,  suffrage  was  restricted  to  white  male  free- 
men, above  the  age  of  twenty-one  years,  who  could  sat- 
isfy a  substantial  property  qualification.  In  Massachu- 
setts, for  instance,  voters  had  to  have  a  freehold  estate  , 
of  the  annual  income  of  three  pounds,  or  other  estate  of 
the  total  value  of  sixty  pounds. 

§  92.  Original  provisions  of  Federal  Constitution.  Tho 
United  States  Constitution  did  not  jmrport  to  interfere 
with  the  absolute  control  of  each  state  over  the  suffrage 
of  those  who  voted  for  state  officers.  Not  only  was  this 
left  unrestrictedly  in  the  hands  of  the  states,  but  even     I 


(13)     rnited  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  688. 


FUNDAMENTAL  RIGHTS  77 

the  qualifications  of  electors  who  voted  for  members  of 
Congress  were  left  in  the  control  of  each  state  by  the 
provision:  **The  electors  in  each  state  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislatures."  (Article  I,  section  2.) 
Article  I,  section  4  of  the  Constitution,  provides  that ' '  the 
times,  places,  and  manner  of  holding  elections  for  sena-i 
tors  and  representatives  shall  be  prescribed  in  eacb  state 
by  the  legislature  thereof;  but  the  Congress  may  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as 
to  the  place  of  choosing  senators. ' '  Under  this  clause  the 
Federal  power  to  regulate  congressional  elections  was 
fully  upheld  during  the  Reconstruction  period  under  the 
so-called  ''Force  bill"  (14). 

As  regards  presidential  electors,  the  Constitution  says 
(Article  II,  section  1,  §§  2,  4) :  "Each  state  shall  appoint, 
in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors,  equal  to  the  whole  number  of  sena- 
tors and  representatives  to  which  the  state  may  be  entitled 
in  the  Congress ;  but  no  senator  or  representative,  or  per- 
son holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector.  .  .  ,  The  Con- 
gress may  determine  the  time  of  choosing  the  electors 
and  the  day  on  which  they  shall  give  their  votes ;  which 
day  shall  be  the  same  throughout  the  United  States." 
The  small  control  that  the  Constitution  gives  to  the 
United  States  over  the  election  of  its  chief  executive  is 
noticeable.    The  present  method  of  choosing  presidential 


(14)     Ex  parte  Yarbrough,  110  U.  S.,  651. 
Vol.  xn— 7 


78  CONSTITUTIONAL  LAW. 

electors  iu  tlie  states  by  a  direct  vote  of  the  people  bap- 
pens  to  be  imiforin  throughout  our  states,  merely  because 
similar  democratic  tendencies  have  been  at  work  in  each 
of  them.  The  present  practice  depends  upon  no  uniform 
Federal  law,  nor  could  Congress  constitutionally  enact 
such  a  law.  At  first  presidential  electors  were  chosen  by 
the  state  legislatures,  and  South  Carolina  did  not  abandon 
this  practice  until  after  the  Civil  war.  So  completely  is 
the  control  of  this  matter  left  with  the  states  that  the 
United  States  Supreme  Court  has  said  concerning  presi- 
dential electors:  "They  are  no  more  ofiScers  or  agents 
of  the  United  States  than  are  members  of  the  state  legis- 
latures when  acting  as  electors  of  Federal  senators,  or 
the  people  of  the  states  when  acting  as  electors  of  repre- 
sentatives in  Congress"  (15). 

§  93.  Constitutional  changes  affecting  suffrage  before 
Fifteenth  Amendment.  Between  1800  and  1850  the  suf- 
frage clauses  of  most  of  the  American  states  were  changed 
so  as  to  abolish  all  property  qualifications.  Only  a  few 
states,  however,  admitted  free  negroes  to  the  ballot.  The 
vast  political  and  social  changes  wrought  by  the  Civil 
war,  which  in  destroying  the  Confederacy  also  dragged 
down  the  institution  of  slavery,  affected  the  right  of  suf- 
frage throughout  the  nation.  Two  important  clauses  were 
added  to  the  United  States  Constitution  bearing  upon  this. 
In  the  original  Constitution  three-fifths  of  the  slaves  had 
been  counted  in  determining  the  basis  of  a  state's  repre- 
sentation in  Congress.    The  second  section  of  the  Four- 


(15)     In  re  Green,  134  U.  S.  377.  379. 


FUNDAMENTAL  RIGHTS  79 

teenth  Amendment  provided  that  representatives  should 
be  apportioned  among  the  states  according  to  their  total 
population,  excluding  Indians  not  taxed;  but  that  when 
the  right  to  vote  at  state  or  Federal  election  was  denied 
to  any  adult  male  citizen  of  the  state,  except  for  crime, 
the  state's  basis  of  representation  should  be  proportion- 
ately reduced.  This  left  any  state  free  to  disfranchise 
any  class  of  persons  it  saw  fit,  as  before,  but  penalized 
such  disfranchisement  by  a  loss  of  representation  in  Con- 
gress. In  a  short  time,  however,  racial  antagonism  in 
the  southern  states  assumed  such  an  aspect  that  many 
persons  believed  that  the  negro  freeman  must  be  given 
the  ballot  for  his  defence,  and  this  was  also  advocated  by 
many  others  from  motives  of  political  partisanship.  As 
a  result,  the  Fifteenth  Amendment  to  the  Constitution, 
was  adopted  in  1870  in  the  words :  * '  The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States,  nor  by  any  state,  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude. '  * 

§  94.  State  limitations  upon  suffrage  since  Fifteenth 
Amendment.  The  Fifteenth  Amendment  does  not  directly 
confer  the  right  of  suffrage  upon  negroes.  So  far  as  this 
amendment  alone  is  concerned  the  states  are  free  to  re- 
strict the  suffrage  for  state  officers,  for  members  of  Con- 
gress, and  for  presidential  electors  in  any  way  they  see 
fit,  save  only  that  it  must  not  be  on  account  of  race,  color, 
or  previous  condition  of  servitude.  It  does  not  restrict 
qualifications  of  sex,  age,  education,  property,  or  birth. 
Recently  one  or  two  states  have  adopted  qualifications 
of  education  and  property,  and  in  addition  have  provided 


80  CONSTITrTIONAL  LAW 

that  persons  may  vote  not  having  these  qualifications, 
provided  they  are  descendants  of  persons  who  could  vote 
in  any  state  before  January  1,  1867.  Persons  taking  ad- 
vantage of  this  latter  qualification  must  register  within 
a  limited  time.  On  January  1,  1867,  negroes  could  not 
vote  in  any  of  the  southern  states  and  in  only  four  or  five 
other  states,  where  negroes  formed  a  very  small  percent- 
age of  the  population.  This  so-called  "grandfather 
clause,"  if  constitutional,  excludes  from  the  suffrage 
practically  all  negroes  who  do  not  satisfy  the  educational 
and  property  tests,  while  admitting  to  the  suffrage  most 
white  persons  who  register  within  the  required  time.  Lit- 
erally interpreted,  it  does  not  in  terms  exclude  anyone 
on  account  of  race,  color,  or  previous  condition  of  servi- 
tude, nor  does  it  in  actual  operation  result  in  the  abso- 
lute exclusion  of  all  possible  negro  voters,  for  resident 
descendants  of  the  few  negroes  who  could  vote  in  this 
country  in  1867  would  be  admissible  to  suffrage  as  well 
as  whites.  It  does,  however,  produce  a  practical  dis- 
crimination against  all  negroes  who  are  the  descendants 
of  negroes  who  in  1867  were  excluded  from  suffrage  on 
account  of  race  and  color.  It  is  extremely  questionable 
whether  such  provisions  do  not  violate  the  Fifteenth 
Amendment.  A  state  decision  in  Oklahoma  has  upheld 
them,  and  a  lower  Federal  court  in  Maryland  denied  their 
validity  (16). 

The  mere  fact  that  the  members  of  a  constitutional  con- 


(16)     Atwater  v.  Hassett,  27  Okla.  292,  308  fL;  Anderson  v.  Myers, 
182  Fed.  223. 


FUNDAMENTAL  RIGHTS  81 

vention  desire  so  far  as  possible  to  exclude  a  particular 
race  from  suffrage  will  not  make  qualifications  for  elec- 
tors invalid  if  not  really  based  upon  the  forbidden  dis- 
tinctions. For  instance,  an  educational  qualification  in 
Mississippi  will  disfranchise  a  much  larger  percentage  of 
negroes  than  of  whites  and  may  be  frankly  adopted  be- 
cause it  will  have  this  effect.  If  honestly  administered, 
however,  it  is  not  invalid,  because  the  test  applied  is 
really  not  one  of  race  (17). 

§  95.    Suifrage  not  a  necessary  incident  of  citizenship. 
A  few  years  after  the  adoption  of  the  Fourteenth  amend- 
ment a  case  was  carried  to  the  United  States  Supreme 
Court  from  Missouri,  based  upon  that  clause  of  the  Four- 
teenth Amendment  which  provides :  "No  state  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States.'^  The  plain- 
tiff, a  woman,  claimed  that  the  right  to  vote  for  presiden- 
tial electors,  congressmen,  and  other  officers,  was  a  priv- 
ilege of  citizens  of  the  United  States,  of  whom  she  was 
one,  and  that  the  Missouri  state  constitution  unconstitu- 
tionally restricted  the  suffrage  to  male  citizens.     The 
court  decided  that,  while  there  was  no  doubt  that  women 
I  might  be  citizens  of  the  United  States  and  of  a  state, 
either  by  birth  or  by  naturalization,  there  was  no  ground 
for  the  claim  that  the  right  of  suffrage  was  a  privilege 
I  necessarily  attaching  to  citizenship.    From  the  time  of 
;  the  adoption  of  the  Constitution  qualifications  for  voting 
;  had  been  prescribed  by  the  states,  under  the  Constitution, 


(17)    Williams  v.  Mississippi,  170  U.  S.  p.  222. 


82  CONSTITUTIONAL  LAW. 

and  at  uo  place  had  these  qualifications  ever  been  the  same 
as  tliosc  required  for  citizenship.  Requirements  of  age, 
sex,  proj^erty,  religious  belief,  and  education  had  always 
excluded  a  large  majority  of  citizens  from  the  suffrage  in 
various  states  (18). 

^  96.  Relation  of  suffrage  limitations  to  congressional 
representation.  As  stated  in  §  93  above,  the  Fourteenth 
Amendment,  section  2,  requires  Congress  to  reduce  pro- 
portionately the  representation  of  states  that  deny  the 
suffrage  to  adult  male  citizens  for  other  reasons  than 
participation  in  crime.  In  recent  years  various  suffrage 
qualifications  have  very  much  reduced  the  numbers  of 
electors  in  several  states,  but  it  is  argued  that  the  suffrage 
is  not  really  denied  to  a  person  when  a  qualification  is 
imposed  that  can  be  rather  easily  met.  A  requirement 
that  a  voter  register,  for  instance,  would  scarcely  be 
called  a  denial  of  the  suffrage  to  those  who  did  not  choose 
to  register.  Similarly  it  is  argued  that  the  requirement 
of  ability  to  read  and  write,  or  the  payment  of  a  small 
poll  tax,  or  perhaps  the  requirement  of  a  small  property 
qualification  can  in  the  main  be  so  readily  met  that  it  does 
not  amount  to  a  denial  or  abridgement  of  the  suffrage  in 
the  sense  of  the  Fourteenth  Amendment.  There  is  enough 
strength  in  this  position  to  leave  the  matter  in  genuine 
doubt,  but  this  argument  could  scarcely  be  applied  to  such 
a  requirement  as  the  one  discussed  above,  discriminating 
in  favor  of  persons  whose  ancestors  could  vote  on  a  cer- 
tain prior  date.  Such  disability  is  as  permanent  as  race 
or  color  itself. 


(18)     Minor  v.  Happersett,  21  Wall.  162. 


FUNDAMENTAL  RIGHTS  83 

Section  4.    Miscellaneous  Political  Rights. 

§  97.  Republican  form  of  government,  invasion,  and 
domestic  violence.  ''The  United  States  shall  guarantee 
to  every  state  in  this  Union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion; 
and  on  application  of  the  legislature,  or  executive  (when 
the  legislature  cannot  be  convened)  against  domestic  vio- 
lence" (19). 

It  has  been  suggested  that  a  republican  form  of  gov- 
ernment in  this  provision  is  intended  to  be  distinguished 
from  monarchical  forms  on  the  one  side  and  those  of 
pure  democracy  on  the  other,  the  government  by  chosen 
representatives  being  the  principal  distinguishing  mark 
(20).  If  a  state  chooses  to  establish  and  use  the  initiative 
and  referendum  largely  in  legislation,  would  such  a  gov- 
ernment be  republican?  The  affirmative  answer  can 
scarcely  be  doubted  (20a).  A  local  referendum  upon 
various  questions  like  liquor  selling  or  the  issue  of  bonds 
has  often  been  upheld. 

Where  there  are  competing  governments  in  the  same 
state  it  rests  with  the  political  departments  of  the  United 
States  to  decide  which  one  is  legitimate  and  the  courts 
will  not  revise  this  determination  (21). 

§  98.  Freedom  of  speech  and  press.  *'  [Congress  shall 
make  no  law]  abridging  the  freedom  of  speech  or  of  the 
press"  (22). 


(19)  Const.,  Art.  IV,  sec.  4. 

(20)  Cooley,  Constitutional  Law,  213. 

(20a)     Pacific  Sts.  Co.  v.  Oregon,  223  U.  S.  118. 

(21)  Luther  v.  Borden,  7  How.  1. 

(22)  Const.,  Amend.  L 


84  CONSTITUTIONAL  LAW. 

This  provision  "does  not  permit  the  publication  of 
\ihv\s,  blasphemous  or  indecent  articles,  or  other  publica- 
tions injurious  to  public  morals  or  private  reputations" 
(23).  The  liability  of  private  individuals  for  defamatory 
spoken  or  written  utterances  is  dealt  with  fully  in  the 
article  on  Torts,  Chapter  VIII,  contained  in  Volume  II 
of  this  work.  Congress  may  forbid  the  circulation  in  the 
mails  of  obscene  matter  or  of  lottery  advertisements. 
These  constitutional  provisions  are  designed  to  secure 
such  freedom  of  public  and  private  discussion,  especially 
in  regard  to  political  matters,  as  may  be  necessary  for 
the  proper  formation  of  public  opinion.  It  does  not  pro- 
tect utterances  injurious  to  well  recognized  private  rights 
or  to  the  public  order  and  welfare  (23a). 

§  99.  Right  of  assemblage  and  petition.  "  [Congress 
shall  make  no  law  abridging]  the  right  of  the  people 
peacefully  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances"  (24). 

Neither  in  terms  nor  in  spirit  does  this  provision  pre- 
vent the  government  forbidding  disorderly  assemblages, 
or  those  at  improper  times  or  places. 

§100.  Right  to  bear  arms.  "A  well  regnilated  militia, 
being  necessary  to  the  security  of  a  free  state,  the  right 
of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed" (25). 

This  provision  and  similar  ones  in  the  state  constitu- 
tions refer  only  to  such  keeping  and  bearing  of  arms  as 


(23)     Robertson  v.  Baldwin,  165  U.  S.  275,  281. 

(23a)  See,  as  to  injunctions,  Gompers  v.  Bucli's  Stove  Co.,  221 
i:.  3.  418;  Marx  Co.  v.  Watson,  168  Mo.  133;  Lindsay  v.  Mont.  Fed. 
Labor,  37  Mont.  264. 

(2i)     Const.,   Amend.   I. 

(25)     Const.,  Amend.  II. 


FUNDAMENTAL  RIGHTS  85 

may  be  necessary  to  preserve  liberty.  It  does  not  prevent 
the  prohibition  of  weapons  usually  employed  in  private 
affrays,  nor  the  prohibition  of  carrying  concealed  weapons 
altogether  (26). 


(26)     state  t.  Workman,  35  West  Va.  372. 


CHAPTER  V. 
PERSONAL  AND  RELIGIOUS  LIBERTY. 

§  101.  Constitutional  history  of  slavery  in  United 
States.  "When  the  Constitution  was  being  framed  in  1787, 
slaves  and  their  labor  were  of  sufficient  importance  to  the 
southern  states  to  make  the  existence  of  slavery  a  source 
of  disagreement  in  the  Philadelphia  convention,  and  sev- 
eral important  clauses  of  the  completed  instrument  bear 
witness  to  the  influence  of  these  controversies.  Probably 
some  natural  feeling  of  repugnance  excluded  the  words 
''slave"  or  ''slavery"  from  the  original  Constitution  and 
its  early  amendments,  but  in  several  places  the  institu- 
tion was  obviously  referred  to  by  circumlocutions.  (See 
Article  I,  section  2,  §3;  section  9,  §1;  Article  IV,  section 
2,  §  3.) 

By  the  Missouri  compromise  of  1820,  by  which  Mis- 
souri was  admitted  to  the  Union,  Congress  forbade  the 
existence  of  slavery  in  any  of  the  territories  north  of 
36°  30'  north  latitude.  The  Constitution  gave  the  United 
States  no  control  over  slavery  as  a  domestic  institution 
within  a  state,  and  the  political  controversies  over  the 
institution,  that  marked  the  generation  between  1820  and 
the  Civil  war,  raged  about  the  policy  and  power  of  Con- 
gress to  prohibit  its  existence  in  territory  not  yet  ad- 
mitted into  the  Union,  and  the  recovery  of  fugitive  slaves 

86 


FUNDAMENTAL  RIGHTS  87 

from  the  free  states.  In  the  famous  Dred  Scott  case  a 
majority  of  the  Supreme  Court  of  the  United  States  were 
of  the  opinion,  though  this  was  not  necessary  to  the  de- 
cision of  the  case,  that  the  Missouri  Compromise  act  was 
unconstitutional  in  so  far  as  it  forbade  slave  owners  from 
taking  their  slaves  into  the  territories  of  the  United 
States.  Congress  being  forbidden  to  take  property  with- 
out due  process  of  law,  it  was  reasoned  that  a  slave  owner 
was  as  much  entitled  to  be  protected  in  his  slave  prop- 
erty in  the  territories,  as  if  he  were  the  owner  of  a 
wagon  and  mules  (1).  The  Civil  war  speedily  followed, 
and  its  first  constitutional  fruit  was  the  enactment  of 
the  Thirteenth  Amendment,  which  prohibited  slavery 
or  involuntary  servitude,  except  as  a  punishment  for  per- 
sons convicted  of  crime,  within  the  United  States  or  any 
place  subject  to  their  jurisdiction.  This  amendment  be- 
came effective  December  18,  1865.    See  §69,  above. 

§  102.  What  constitutes  slavery?  Compulsory  service 
of  sailor.  There  have  been  few  cases  judicially  constru- 
ing this  amendment.  In  Robertson  v.  Baldwin  (2),  in 
1897,  the  question  arose  whether  a  seaman  who  had  vol- 
untarily agreed  to  complete  a  voyage  could  be  constitu- 
tionally compelled  to  return  to  his  ship  against  his  will 
before  the  completion  of  the  voyage.  The  question  was 
thus  stated  by  the  court: 

**Does  the  epithet  'involuntary*  attach  to  the  word 
'servitude'  continuously,  and  make  illegal  any  service 
which  becomes  involuntary  at  any  time  during  its  exis- 


(1)  Dred  Scott  v.  Sandford,  19  How.  393. 

(2)  Robertson  v.  Baldwin,  165  U.  S.  275. 


S8  CONSTITUTIONAL  LAW. 

fence;  or  doos  it  attach  only  at  the  inception  of  the  servi- 
tude, and  clmracterize  it  as  unlawful  because  unlawfully 
entered  into?  .  .  .  The  prohibition  of  slavery  in  the 
Thirteenth  Amendment  is  well  known  to  have  been 
adopted  with  reference  to  a  state  of  affairs  which  had 
existed  in  certain  states  of  the  Union  since  the  foundation 
of  the  government,  while  the  addition  of  the  words  'in- 
voluntary servitude'  were  said  in  the  Slaughterhouse 
oases,  16  Wall.  36,  to  have  been  intended  to  cover  the 
system  of  Mexican  peonage  and  the  Chinese  coolie  trade, 
the  practical  operation  of  which  might  have  been  a  re- 
vival of  the  institution  of  slavery  under  a  different  and 
less  offensive  name.  It  is  clear,  however,  that  the  amend- 
ment was  not  intended  to  introduce  any  novel  doctrine 
with  respect  to  certain  descriptions  of  service  which  have 
always  been  treated  as  exceptional,  such  as  military  and 
naval  enlistments;  or  to  disturb  the  right  of  parents  and 
guardians  to  the  custody  of  their  minor  children  or 
wards." 

The  court  then  showed  that  the  contract  of  a  sailor 
had  always  been  treated  as  exceptional  and  the  sailor 
compellable  not  to  desert  during  the  continuance  of  the 
voyage,  and  therefore  decided  the  Thirteenth  Amend- 
ment did  not  apply. 

§  103.  Same:  Compulsory  service  to  discharge  debt. 
In  Clyatt  v.  United  States  (3),  the  question  was  con- 
sidered whether  the  Thirteenth  Amendment  applied  to 
the  compulsory  enforcement  of  a  person's  agreement  to 


(3)     197  U.  S.  207. 


FUNDAMENTAL  RIGHTS  89 

render  ser^dce  in  the  discharge  of  a   debt,   sometimes 
called  peonage.    The  court  said : 

''What  is  peonage?  It  may  be  defined  as  a  status  or 
condition  of  compulsory  service,  based  upon  the  indebted- 
ness of  the  peon  to  the  master.  .  .  .  Peonage  is  sometimes 
classified  as  voluntary  or  involuntary,  but  this  implies 
simply  a  difference  in  the  mode  of  origin,  but  none  in 
the  character  of  the  servitude.  The  one  exists  vrhere  the 
debtor  vohmtarily  contracts  to  enter  the  service  of  his 
creditor.  The  other  is  forced  upon  the  debtor  by  some 
provision  of  law.  But  peonage,  however  created,  is  com- 
pulsory service,  involuntaiy  servitude.  A  clear  distinction 
exists  between  peonage  and  the  voluntary  performance 
of  labor  or  rendering  of  services  in  payment  of  a  debt. 
In  the  latter  case  the  debtor,  though  contracting  to  pay 
his  indebtedness  by  labor  or  service,  and  subject  like  any 
other  contractor  to  an  action  for  damages  for  breach  of 
that  contract,  can  elect  at  any  time  to  break  it,  and  no 
law  or  force  compels  performance  or  a  continuance  of 
the  service.  We  need  not  stop  to  consider  any  possible 
limits  or  exceptional  cases,  such  as  the  service  of  a  sailor, 
or  the  obligations  of  a  child  to  its  parents,  or  of  an  ap- 
prentice to  his  master,  or  the  power  of  the  legislature  to 
make  unlawful  and  punish  criminally  an  abandonment 
by  an  employe  of  his  post  of  labor  in  any  extreme  cases." 
The  court  therefore  held  such  involuntary  service  to  be 
slavery  and  forbidden  by  the  Constitution. 

§  104.  Sam.e:  Imprisonment  for  breach  of  labor  con- 
tract. Recently  South  Carolina  passed  a  statute  punish- 
ing by  fine  and  imprisonment  any  one  who  wilfully  and 


90  CONSTITUTIONAL  T;AW 

without  just  cause  broke  a  contract  to  labor  on  farm 
laud.  The  Federal  district  court  in  South  Carolina  held 
this  was  substantially  the  same  as  peonage,  because  com- 
pelling the  laborer,  under  penalty  of  imprisonment,  to 
continue  in  involuntary  servitude  (4).  The  United  States 
Supreme  Court  later  decided  in  a  case  from  Alabama 
that  the  breach  of  a  contract  to  render  personal  service 
may  not  be  made  criminal  without  violating  the  Thir- 
teenth Amendment  (4a). 

§  105.  Religious  liberty.  ' '  Congress  shall  make  no 
law  respecting  an  establishment  of  religion,  or  prohibit 
the  free  exercise  thereof"  (5). 

A  similar  provision  is  found  in  most  of  the  state  con- 
stitutions. These  prohibitions  do  not  forbid  laws  re- 
garding the  observance  of  Sunday,  punishing  blasphemy, 
or  forbidding  polygamy,  although  the  latter  may  be  al- 
leged to  be  a  religious  observance  (6).  Legislation  rea- 
sonably designed  to  promote  the  peace,  good  order,  and 
morals  of  society  is  not  invalid  because  it  interferes  with 
the  external  acts  of  a  religious  society.  Reading  the 
Bible  in  the  public  schools,  without  sectarian  comment; 
is  usually  held  not  to  be  a  violation  of  the  religious  liberty 
clause  of  American  constitutions,  though  particular  state 
constitutions  may  be  so  strictly  drawn  as  impliedly  to  for- 
bid even  this  (7). 


(4)  Ex  parte  Drayton,  153  Fed.  9SG 
(4a)  Bailey  v.  Alabama,  219  U.   S.  219 

(5)  Const.,  Amend.  I. 

(6)  Reynolds  v.  United  States,  98  U.  S.  163. 

(7)  See  People  v.  Bd.  of  Education,  245  111.  334. 


CHAPTER  VI. 

PROTECTION  TO  PERSONS  ACCUSED  OF  CRIME. 

§  106.  Introduction.  A  considerable  number  of  provi- 
sions in  the  bills  of  rights  of  both  Federal  and  state  con- 
stitutions are  designed  to  afford  protection  to  persons 
accused  of  crime.  Today  we  are  so  familiar  with  the 
difficulty  of  successfully  convicting  persons  charged  with 
serious  crime  that  it  is  hard  to  realize  that  there  was  a 
time  when  alleged  criminals  found  difficulty  in  securing 
fair  treatment  from  the  government.  The  elaborate  safe- 
guards provided  by  our  constitutions  for  such  persons  are 
due  historically  to  the  operation  of  at  least  three  different 
circumstances.  In  the  first  place,  the  procedure  of  the  early 
English  criminal  law  was  harsh  and  oppressive  to  the 
defendant.  In  the  second  place,  a  large  proportion  of  all 
crimes,  even  of  a  trivial  nature,  were  punishable  by  death. 
Stealing  property  above  the  value  of  five  shillings  was 
thus  punishable  in  England  into  the  early  part  of  the 
nineteenth  centuiy.  In  the  third  place,  the  criminal  law 
was  often  oppressively  used  by  the  English  government 
in  securing  the  conviction  of  its  opponents  for  political 
crime.  When  our  early  constitutions  were  formed,  the 
abuses  and  rigor  of  the  English  criminal  law  were  fresh  in 
the  minds  of  American  statesmen  and  they  sought  to 
prevent  the  re-occurrence  of  such  things  in  this  country. 

91 


Pi  CONSTITUTIONAL  LAW. 

Section   1.     Bili^  of  Attainder  and   Ex  Post   Facto 

Laws. 

§  107.  Bills  of  attainder.  The  United  States  Consti- 
tution, Article  I,  section  9,  §  3,  prohibits  the  United  States 
from  passing  any  bill  of  attainder  or  ex  post  facto  law. 
Article  I,  section  10  forbids  any  state  from  doing  either 
of  these  things.  These  clauses  were  inserted  in  the  Con- 
stitution in  order  to  protect  persons  accused  of  crime 
from  legislative  punishment  without  a  trial  and  from 
punishment  retroactively  imposed. 

A  bill  of  attainder  has  been  described  as  *  *  a  legislative 
act  which  inflicts  punishment  without  a  judicial  trial' '(1). 

A  statute  of  West  Virginia  denied  the  right  to  bring  cer- 
tain suits  in  the  courts  of  that  state  to  persons  who  were 
unable  to  take  an  oath  that  they  had  never  supported 
any  government  hostile  to  the  LTnited  States  during  the 
Civil  war.  This  was  adjudged  by  the  United  States  Su- 
preme Court  to  be  invalid  as  a  bill  oi  attainder,  in  that 
it  was  legislative  punishment,  without  a  judicial  trial,  for 
the  offense  of  engaging  in  rebellion  against  the  United 
States  (2). 

§  108.  Ex  post  facto  laws:  Early  definition.  Wliile 
there  has  been  but  little  litigation  over  the  prohibition 
of  bills  of  attainder,  its  companion  clause,  forbidding 
the  enactment  of  ex  post  facto  laws  has  been  the  subject 
of  frequent  judicial  interpretation.  The  words  ''ex  post 
facto ' '  mean,  in  medieval  Latin,  ' '  after  the  fact. ' '    Liter- 


CD     Cummings  v.  Missouri,  4  Wall.  277,  323-4. 
(2)     Pierce  v.  Carskadon,  16  Wall.  234. 


FUNDAMENTAL  RIGHTS  93 

ally  applied,  the  clause  would  prohibit  retrospective  legis- 
lation affecting  either  civil  rights  or  criminal  punish- 
ments. In  its  usage  in  English  law  the  phrase  has  almost 
always  been  restricted  to  penal  statutes,  and  from  the 
debates  in  the  constitutional  convention  it  appears  that 
this  usage  was  brought  to  the  attention  of  the  members 
of  the  convention.  In  the  earliest  case  construing  this 
clause  that  came  before  the  United  States  Supreme  Court, 
a  law  of  Connecticut  was  challenged  as  ex  post  facto 
which  gave  a  new  trial  to  a  party  after  he  had  once  been 
finally  defeated  upon  the  probate  of  a  will  as  the  law 
stood  at  the  time  of  the  first  trial.  That  court  held 
that  the  clause  applied  only  to  certain  classes  of  retro- 
spective criminal  statutes.    Judge  Chase  said: 

*'I  will  state  what  laws  I  consider  ex  post  facto  laws, 
within  the  words  and  the  intent  of  the  prohibition.  1st. 
Every  law  that  makes  an  action  done  before  the  passing 
of  the  law,  and  which  was  innocent  when  done,  criminal ; 
and  punishes  such  action.  2d.  Every  law  that  aggravates 
a  crime,  or  makes  it  greater  than  it  was,  when  committed. 
3d.  Every  law  that  changes  the  punishment,  and  inflicts 
a  greater  punishment  than  the  law  annexed  to  the  crime, 
when  committed.  4th.  Every  law  that  alters  the  legal 
rules  of  evidence,  and  receives  less  or  different  testimony 
than  the  law  required  at  the  time  of  the  commission  of  the 
offense,  in  order  to  convict  the  offender.  .  .  .  But  I  do 
not  consider  any  law  ex  post  facto,  within  the  prohibition, 
that  mollifies  the  rigor  of  the  criminal  law ;  but  only  those 
that  create,  or  aggravate,  the  crime ;  or  increase  the  pun- 


94  CONSTITUTIONAL  LAW. 

isbment,  or  change  tlie  rules  of  evidence,  for  the  purpose 
of  conviction"  (3). 

§  109.  Same:  Later  definition.  The  classification  of 
ex  post  facto  laws  made  in  Calder  v.  Bull  above  has  be- 
come classic,  and  has  been  quoted  with  approval  many- 
times  in  both  state  and  Federal  courts.  Like  many  defini- 
tions that  have  been  attempted  in  advance  of  a  thorough 
consideration  of  all  possibilities,  later  decisions  have 
shown  it  not  to  be  strictly  accurate.  Some  years  ago  the 
state  of  Utah  passed  a  statute  for  the  trial  of  criminal 
cases  by  a  jury  composed  of  eight  persons.  Previously 
a  jury  was  composed  of  twelve  persons,  and  several  men 
who  were  alleged  to  have  committed  crimes  under  the  old 
law  were  tried  for  them  under  the  new  one  before  a  jury 
of  eight  jurors.  Although  the  change  of  law  here  ob- 
viously did  not  fall  within  any  one  of  the  four  classes 
enumerated  in  Calder  v.  Bull,  it  was  adjudged  ex  post 
facto  and  invalid.  The  court  said  a  penal  statute  was  ex 
post  facto  "which  by  its  necessary  operation  and  in  its 
relations  to  the  offense  or  its  consequences,  alters  the 
situation  of  the  accused  to  his  disadvantage"  (4).  Mani- 
festly it  was  easier  to  secure  the  unanimous  vote  of  eight 
jurors  for  conviction  than  of  twelve,  and  so  the  situation 
of  the  accused  was  altered  to  his  disadvantage. 

§  110.    What  is  a  mitigation  of  punishment?    Nice 
questions  may  sometimes  be  raised  as  to  whether  a  law 
changing  the  punishment  of  crime  really  mitigates  it  orj 
not,  for  if  the  change  is  a  lessening  of  the  severity  of  the 


(3)  Calder  v.  Bull,  3  Dallas,  386. 

(4)  Thompsou  v.  Utah,  170  U.  S.  343,  351,  353. 


FUNDAMENTAL  RIGHTS  95 

piinisliment  it  is  unobjectionable.  In  New  York  in  1860 
the  legislature  changed  the  punishment  for  various  crimes 
from  death  to  life  imprisonment.  The  New  York  court  of 
appeals  held  this  change  to  be  ex  post  facto,  because  it 
was  such  an  entirely  different  kind  of  punishment  that 
they  were  unable  to  say  that  it  was  less  severe.  The  de- 
termination of  what  kind  of  punishment  would  generally 
be  preferred  by  criminals  ought  not  to  be  left  to  the  opin- 
ion of  the  judges  (5).  On  the  other  hand  the  Massachusetts 
supreme  court  held  such  a  change  to  be  clearly  a  mitiga- 
tion of  the  punishment  and  so  valid  (6).  Probably  the 
correct  view  of  a  change  in  the  manner  of  punishment  is 
stated  by  Judge  Peckham  in  a  later  New  York  case  as 
follows : 

''I  think  that  where  a  change  is  made  in  the  manner  of 
punishment,  if  the  change  be  of  that  nature  which  no 
sensible  man  could  by  any  possibility  regard  in  any  other 
light  than  that  of  a  mitigation  of  the  punishment,  the  act 
would  not  be  ex  post  facto  where  made  applicable  to  the 
offense  committed  before  its  passage"  (7). 

§  111.  Changes  in  procedure.  Legislatures  frequently 
make  changes  in  procedure  that  affect  the  trial  of  men 
!for  crimes  already  committed.  Interesting  questions  of 
constitutionality  are  sometimes  raised  by  such  statutes. 
In  Missouri,  at  the  time  a  certain  murder  was  committed, 
j  the  law  forbade  the  use  in  evidence  of  other  writings  of 
the  prisoner  in  order  to  show  whether  or  not  some  docu- 


(5)  Shepherd  v.  People,  25  N.  Y.  406. 

(6)  Commonwealth  v.  Wyman,  12  Cush.  237. 

(7)  People  V,  Hayes,  140  N.  Y.  484,  492. 


96  CONSTITUTIONAL  LAW. 

mciit  in  the  case  was  in  bis  handwriting.  Before  trial, 
the  legislature  altered  this  rule  and  permitted  such  com- 
parison of  handwritings  to  be  made.  This  was  held  valid, 
the  court  saying  : 

*'The  statute  did  nothing  more  than  remove  an  obstacle 
arising  out  of  a  rule  of  evidence  that  withdrew  from  the 
consideration  of  the  jury  testimony  which,  in  the  opinion 
of  the  legislature,  tended  to  elucidate  the  ultimate,  es- 
sential fact  to  be  established,  namely,  the  guilt  of  the  ac- 
cused. Nor  did  it  give  the  prosecution  any  right  that  was 
denied  to  the  accused.  It  placed  the  state  and  the  accused 
upon  an  equality;  for  the  rule  established  by  it  gave  to 
each  side  the  right  to  have  disputed  writings  compared 
with  writings  proved  to  the  satisfaction  of  the  judge  to 
be  genuine.  Each  side  was  entitled  to  go  to  the  jury  upon 
the  question  of  the  genuineness  of  the  writing  upon  which 
the  prosecution  relied  to  establish  the  guilt  of  the  ac- 
cused" (8). 

Similarly  statutes  changing  the  place  of  trial,  changing 
the  number  of  the  appellate  judges,  requiring  more  in- 
telligent jurors,  and  so  forth,  are  valid.  They  do  not 
necessarily  change  the  situation  of  the  accused  to  his  dis- 
advantage. On  the  contrary,  they  are  quite  as  likely  to 
operate  to  his  advantage  as  to  that  of  the  state,  and  there- 
fore they  deprive  him  of  no  substantial  right  (8a). 

§  112.  Retroactive  quaJifications  for  a  profession.  In 
1878  one  Hawker  was  convicted  in  New  York  of  the  crime 
of  abortion,  and  served  a  term  in  the  penitentiary  there- 


(8)     Thompson  v.  Missouri,  171  U.  S.  380,  387-8. 
(Sa)   But  see  Ey  parte  AlcCardle,   7  Wall.   506;  Mallett  t.  N. 
181  U.  S.  587. 


FUNDAMENTAL  RIGHTS  &7 

for.  Afterwards  he  lawfully  practiced  medicine  in  New 
York  until  the  enactment  in  1895  of  a  statute  forbidding 
any  person  after  conviction  of  felony  to  practice  medicine 
in  the  state.  Hawker  was  indicted  for  practicing  medicine 
in  New  York  in  violation  of  this  statute,  and  after  con- 
viction took  his  case  to  the  United  States  Supreme  Court, 
claiming  the  law  was  ex  post  facto.    The  court  said: 

"On  the  one  hand  it  is  said  that  defendant  was  tried, 
convicted  and  sentenced  for  a  criminal  offense.  He  suf- 
fered the  punishment  pronounced.  The  legislature  has  no 
power  to  thereafter  add  to  that  punishment.  The  right 
to  practice  medicine  is  a  valuable  property  right.  To  d^ 
prive  a  man  of  it  is  in  the  nature  of  punishment,  and  after 
the  defendant  has  once  fully  atoned  for  his  oifense  a  stat- 
ute imposing  this  additional  penalty  is  one  simply  in- 
creasing the  punishment  for  the  offense,  and  is  ex  post 
facto. 

"On  the  other,  it  is  insisted  that  within  the  acknowl- 
edged reach  of  the  police  power,  a  state  may  prescribe  the 
qualifications  of  one  engaged  in  any  business  so  directly 
affecting  the  lives  and  health  of  the  people  as  the  prac- 
tice of  medicine.  It  may  require  both  qualifications  of 
learning  and  good  character,  and,  if  it  deems  that  one  who 
has  violated  the  criminal  laws  of  the  state  is  not  possessed 
|of  sufficiently  good  character,  it  can  deny  to  such  a  one 
;the  right  to  practice  medicine,  and,  further,  it  may  make 
;the  record  of  a  conviction  conclusive  evidence  of  the  fact 
jof  violation  of  the  criminal  law  and  of  the  absence  of  the 
jrequisite  good  character.  .  .  .  We  are  of  the  opinion  that 


98  CONSTITUTIONAL  LAW. 

this  argument  is  the  more  applicable  and  must  control  the 
answer  to  this  question"  (9). 

§  113.  Same:  Ex  post  facto  if  unreasonable.  On  the 
other  hand,  just  after  the  Civil  war,  Missouri  adopted  a 
constitution  disqualifying  all  persons  who  took  any  part 
in  the  Rebellion  from  holding  an  office  in  any  corporation 
in  the  state,  being  professors  or  teachers  in  any  educa- 
tional institution,  acting  as  attorneys  at  law,  or  acting  as 
priests  or  clergymen  of  any  religious  denomination,  under 
penalties  of  fine  and  imjDrisonment.  The  conviction  of  a 
priest,  obtained  under  this  statute,  was  set  aside  by  the 
United  States  Supreme  Court.    The  court  said: 

''Among  the  rights  reserved  to  the  states  is  the  right  of 
each  state  to  determine  the  qualifications  for  office,  and 
the  conditions  upon  which  its  citizens  may  exercise  their 
various  callings  and  pursuits  within  its  jurisdiction.  .  .  . 
It  by  no  means  follows  that,  under  the  form  of  creating 
a  qualification  or  attaching  a  condition,  the  states  can  in 
effect  inflict  a  punishment  for  a  past  act  which  was  not 
punishable  at  the  time  it  was  committed.  .  .  . 

"Qualifications  relate  to  the  fitness  or  capacity  of  the 
party  for  a  particular  pursuit  or  profession.  Webster 
defines  the  term  to  mean  *  any  natural  endowment  or  any 
acquirement  which  fits  a  person  for  a  place,  office,  or  em- 
plojTnent,  or  enables  him  to  sustain  any  character,  with 
success. '  It  is  evident  from  the  nature  of  the  pursuits  and 
professions  of  the  parties,  placed  under  disabilities  by  the 
constitution  of  Missouri,  that  many  of  the  acts,  from  the 


(9)     Hawker  v.  New  York,  170  U.  S.  189,  191-2. 


FUNDAMENTAL  RIGHTS  99 

taint  of  which  they  must  purge  themselves,  have  no  pos- 
sible relation  to  their  fitness  for  those  pursuits  and  pro- 
fessions. There  can  be  no  connection  between  the  fact 
that  Mr.  Cummings  entered  or  left  the  state  of  Missouri 
to  avoid  enrolment  or  draft  in  the  military  service  of  the 
United  States  and  his  fitness  to  teach  the  doctrines  or  ad- 
minister the  sacraments  of  his  church ;  nor  can  a  fact  of 
this  kind  or  the  expression  of  words  of  sympathy  with 
some  of  the  persons  drawn  into  the  Rebellion  constitute 
any  evidence  of  the  unfitness  of  the  attorney  or  counsellor 
to  practice  his  profession,  or  of  the  professor  to  teach  the 
ordinary  branches  of  education,  or  of  the  want  of  busi- 
t<ess  knowledge  or  business  capacity  in  the  manager  of  a 
corporation,  or  in  any  director  or  trustee"  (10). 

The  doctrines  of  these  two  cases  show  very  clearly 
where  the  line  is  to  be  drawn  between  laws  imposing  con- 
ditions that  amount  to  punishment  for  past  acts,  and 
laws  that  impose  reasonable  qualifications  for  future 
occupations. 

Section  2.    Self-Inceimination. 

§  114.  General  scope  of  privilege.  The  Fifth  Amend- 
ment of  the  Constitution  declares  that  no  person  shall 
be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself.  Though  this  provision  applies  only  to  the  United 
States  government,  and  not  to  the  states,  most  of  the 
states  have  in  their  own  constitutions  a  similar  provision. 

The  provision  means  not  only  that  a  person  cannot  be 
compelled  to  testify  against  himself  in  an  actual  prosecu- 


(10)     Cummings  v.  Missouri,  4  Wall.  277,  319-20. 


100  CONSTITUTIONAL  LAW. 

tion  against  himself,  but  that  he  shall  not  be  required,  as 
a  witness  in  any  proceeding  whatever,  to  give  testimony 
that  may  afterwards  be  used  in  that  jurisdiction  in  a 
criminal  prosecution  against  him.  Nor  can  he  be  com- 
pelled to  produce  private  books  and  papers,  the  contents 
of  which  may  incriminate  him  (11),  or  even  to  strip  and 
display  parts  of  his  body  or  clothing,  a  view  of  which  may 
incriminate  him.  Thus,  a  defendant  cannot  be  compelled 
to  make  a  print  of  his  naked  foot  in  a  pan  of  mud  in  the 
presence  of  a  jury,  in  order  to  show  that  it  resembles  the 
footprint  of  the  person  who  committed  the  crime  (12),  or 
be  compelled  to  permit  a  similar  use  of  his  shoes. 

§  115.  Purely  personal.  The  privilege  is  confined 
wholly  to  the  person  whose  conduct  may  later  be  made 
the  subject  of  criminal  charge,  and  it  may  not  be  pleaded 
by  that  person's  agents.  Even  in  the  case  of  a  corpora- 
tion, which  of  course  can  act  in  no  other  way  than  by 
agents,  the  rule  is  the  same.  The  agents  of  the  corpora- 
tion, including  the  president  and  the  highest  officials,  may 
be  required  to  give  testimony  that  may  aftei-wards  be 
used  in  a  criminal  case  against  the  corporation.  This 
privilege,  which  in  this  case  is  virtually  non-existent  be- 
cause a  corporation  cannot  testify  itself,  cannot  be  made 
use  of  by  its  officers  (13). 

§  116.  Protects  only  against  criminal  prosecution. 
The  immunity  given  by  this  provision  applies  only  to 
testunony  that  may  actually  expose  a  person  to  prosecu- 


(11)  Boyd  V   r.  S.,  116  U.  S.  016,  633. 

(12)  Stokes  V.  State,  5  Baxt    (Tenn.)  619. 

(13)  Hale  v.  Henkel.  201  U.  S.  pp.  66-70.     See  Wilson  v.  U.  S.,  221 
U.  S.  361. 


FUNDAMENTAL  RIGHTS  101 

tion  for  crime.  **It  is  not  declared  that  he  may  not  be 
compelled  to  testify  to  facts  which  may  impair  his  reputa- 
tion for  probity,  or  even  tend  to  disgrace  him,  but  the 
line  is  drawn  at  testimony  that  may  expose  him  to  prose- 
cution. If  the  testimony  relate  to  criminal  acts  long  since 
past,  and  against  the  prosecution  of  which  the  statute  of 
limitations  has  run,  or  for  which  he  has  already  received 
a  pardon  or  is  guaranteed  an  immunity,  the  amendment 
does  not  apply"  (14). 

§  117.  Secures  immunity  only  in  the  immediate  juris- 
diction. The  immunity  guaranteed,  by  statute  or  other- 
wise, need  not  extend  outside  of  the  jurisdiction  of  the 
state  granting  it,  in  order  to  make  a  witness  compellable 
to  testify  within  it.  Of  course  a  state  statute  cannot  give 
immunity  against  prosecution  by  the  United  States  or  by 
other  states,  and  it  may  well  happen  that,  in  answering 
fully  the  questions  asked  by  the  state,  information  may 
incidentally  be  given  that  might  be  used  in  prosecutions 
by  the  Federal  or  other  state  governments.  Protection 
against  these  possibilities,  however,  is  not  within  the  scope 
of  this  constitutional  provision  (15). 

Section  3.    Unreasonable  Searches  and  Seizures. 

§  118.  General  scope  of  privilege.  The  Fourth  Amend- 
ment of  the  Constitution  provides:  ''The  right  of  the 
people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated,  and  no  warrants  shall  issue,  but  upon 


(14)  Hale  v.  Henkel,  201  U.  S.  pp.  66-67. 

(15)  Hale  V.  Henkel,  201  U.  S.  pp.  68-69. 


102  CONSTITUTIONAL  LAW. 

probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched,  and  the  per- 
sons or  things  to  be  seized."  This  applies  only  to  the 
United  States  government,  but  most  of  the  state  constitu- 
tions have  similar  provisions. 

It  has  been  said  that  this  provision  is  applicable  to  crim- 
inal proceedings  only  (16),  and  it  has  been  decided  that 
it  has  no  reference  to  civil  proceedings  for  the  recovery 
of  debts  where  a  search  warrant  is  not  used  (17).  The 
intimate  relation  between  the  Fourth  and  Fifth  Amend- 
ments has  been  judicially  noticed.    It  has  been  said: 

* '  They  throw  great  light  on  each  other.  For  the  '  unrea- 
sonable searches  and  seizures'  condemned  in  the  Fourth 
Amendment  are  almost  always  made  for  the  purpose  of 
compelling  a  man  to  give  evidence  against  himself,  which 
in  criminal  cases  is  condemned  in  the  Fifth  Amendment ; 
and  compelling  a  man  'in  a  criminal  case  to  be  a  witness 
against  himself,'  which  is  condemned  in  the  Fifth  Amend- 
ment, throws  light  on  the  question  as  to  what  is  an  'un- 
reasonable search  and  seizure,  within  the  meaning  of  the 
Fourth  amendment.  And  we  have  been  unable  to  perceive 
that  the  seizure  of  a  man's  private  books  and  papers  to  be 
'ased  in  evidence  against  him  is  substantially  different 
from  compelling  him  to  be  a  witness  against  himself.  We 
think  it  is  within  the  clear  intent  and  meaning  of  those 
terms"  (18). 

§  119.    Extends  to  the  mails.    The  same  protection  ex- 


(16)  In  re  Strouse,  1  Sawyer  605, 

(17)  Murry  v.  Hoboken  Land  Co.,  18  How.  272,  285. 

(18)  Boyd  V.  United  States,  116  U.  S.  616. 


FUNDAMENTAL  RIGHTS  103 

tends  to  sealed  packages  going  through  the  mails.  ''•'Let- 
ters and  sealed  packages  of  this  kind  in  the  mail  axe  as 
fully  guarded  from  examination  and  inspection,  except 
as  to  their  outward  form  and  weight,  as  if  they  were  re- 
tained by  the  parties  forwarding  them  in  their  own  domi- 
ciles. The  constitutional  guaranty  of  the  rights  of  the 
people  to  be  secure  in  their  papers  against  unreasonable 
searches  and  seizures  extends  to  their  papers,  thus  closed 
against  inspection,  wherever  they  may  be.  Whilst  in  the 
mail,  they  can  only  be  opened  and  examined  under  like 
warrant,  issued  upon  similar  oath  or  affirmation,  par- 
ticularly describing  the  thing  to  be  seized,  as  is  required 
when  papers  are  subjected  to  search  in  one's  own  house- 
hold. No  law  of  Congress  can  place  in  the  hands  of  of- 
ficials connected  with  the  postal  service  any  authority  to 
invade  the  secrecy  of  letters  and  such  sealed  packages  in 
the  mail;  and  all  regulations  adopted  as  to  mail  matter 
of  this  kind  must  be  in  subordination  to  the  great  prin- 
ciple embodied  in  the  Fourth  Amendment  of  the  Constitu- 
tion" (18a). 

§  120.  Forbids  general  warrants.  When  the  warrant 
provided  for  in  the  Fourth  Amendment  is  issued  for  the 
arrest  of  a  person  it  must  specifically  name  or  describe 
him.  A  warrant  without  other  description,  giving  a  fic- 
titious name  for  the  accused,  or  one  by  which  he  has  never 
been  known,  or  a  so-called  blank  or  ** general"  warrant, 
does  not  comply  with  the  constitutional  provision  and  ia 
invalid.  (19).    The  subject  is  fully  treated  in  the  article 


(18a)     Ex  parte  Jackson,  96  U.  S.  p.  733. 
(19)     West  T.  Cabell,  153  U.  S.  78. 


104  CONSTITUTIONAL  LAW. 

on  Criminal  Procedure    §§9-11.  in  Volume  III  of  thii 
work. 

Section  4.     Juries. 

§  121.  Definition  of  a  trial  jury.  The  United  States 
Constitution  provides  that  in  tlie  Federal  courts  all  crim- 
inal trials  shall  be  by  jury,  and  also  all  civil  trials  in  suits 
at  common  law  where  the  value  in  controversy  shall  ex- 
ceed $20  (20).  Similar  provisions  are  found  in  most  of 
our  state  constitutions.  This  requirement  of  a  jury  means 
not  merely  a  body  of  men  of  indefinite  number,  who  may 
decide  questions  by  a  majority  or  other  fractional  vote, 
but  refers  to  the  particular  kind  of  a  jury  known  to  the 
English  law  with  which  the  colonists  were  familiar.  It  is 
a  jury  of  twelve  men,  no  more  and  no  less,  who  must  find 
a  unanimous  verdict.  ''The  word  'jury'  and  the  words 
'trial  by  jury'  were  placed  in  the  Constitution  of  the 
United  States  with  reference  to  the  meaning  aflSxed  to 
them  in  the  law  as  it  was  in  this  country  and  in  England 
at  the  time  of  the  adoption  of  that  instrument ;  .  .  .  which 
required  a  trial  by  a  jury  composed  of  not  less  than 
twelve  persons."  "The  Seventh  Amendment  secured 
unanimity  in  finding  a  verdict  as  an  essential  feature  of  a 
trial  by  jury  in  common  law  cases,  and  Congress  could 
not  .  .  .  change  the  constitutional  rule"  (21). 

§  122.  Constitutional  function  of  judge  in  jury  trials. 
Of  the  function  of  the  judge  in  respect  to  jury  trials  it 
has  been  said :  "  '  Trial  by  jury, '  in  the  primary  and  usual 


(20)  Art  III..  Sec.  2 ;  Amend.  VI  and  VII. 

(21)  ThompsH)n  v.  Utah,.  170  U.  S.,  343,  350;  Springrille  v.  Thomas. 
166  U.  S.  707. 


FUNDAMENTAL  RIGHTS  105 

sense  of  the  term  at  the  common  law  and  in  the  American 
Constitution,  is  not  merely  a  trial  by  a  jury  of  twelve 
men  before  an  officer  vested  with  authority  to  cause 
them  to  be  summoned  and  empanelled,  to  administer  oaths 
to  them  and  to  the  constable  in  charge,  and  to  enter  judg- 
ment and  issue  execution  on  their  verdict ;  but  it  is  a  trial 
by  a  jury  of  twelve  men,  in  the  presence  and  under  the 
superintendence  of  a  judge  empowered  to  instruct  them 
on  the  law  and  to  advise  them  on  the  facts,  and  (except 
on  acquittal  of  a  criminal  charge)  to  set  aside  their  verdict 
if  in  his  opinion  it  is  against  the  law  or  the  evi- 
dence" (22). 

§  123.    Misdemeanors  may  be  tried  without  jury.    The 

constitutional  requirement  of  juries  for  the  trial  of  crimes 
does  not  include  minor  misdemeanors.  Jury  trial  in  such 
cases  may  be  omitted  by  statute,  or  waived  by  the  defend- 
ant (23).  In  case  of  felonies  it  is  commonly  held  that  a 
defendant  may  not  validly  consent  to  a  trial  otherwise 
than  by  a  constitutional  jury.  No  other  tribunal  is  given 
jurisdiction  of  such  cases  by  the  Constitution,  and,  while 
privileges  may  be  waived  by  the  party  entitled  to  them, 
jurisdiction  must  be  derived  from  the  law  and  not  through 
private  consent  (24), 

§  124.  Diversities  of  constitutional  requirement.  Of 
course  these  provisions  in  the  Constitution  of  the  United 
States  do  not  prevent  the  separate  states  from  altering 
their  own  constitutions  in  respect  to  juries,  and  consider- 


(22)  Capital  Traction  Co.  v.  Hof,  174  U.  S.  pp.  13-14. 

(23)  Schick  V.  U.  S.,  195  U.  S.  65. 

(24)  Harris  v.  People,  128  111.  585,  591. 


lOG  CONSTITUTIONAL  LAW. 

able  diversity  exists  in  details.  In  some  states  juries  are 
not  required  in  certain  cases,  in  others  a  unanimous  ver- 
dict is  not  required  even  in  criminal  cases.  The  common 
law  power  of  the  judge  in  the  conduct  of  the  trial  has  also 
been  substantially  limited  and  altered  in  a  number  of 
states.  See  Criminal  Procedure,  §§  72-75  in  Volume  III 
of  this  work. 

§  125.  Grand  juries.  The  Fifth  Amendment  of  the 
Constitution  provides  that  no  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public 
danger.  The  principal  question  that  may  arise  regarding 
these  provisions  is  what  constitutes  an  infamous  crime. 
A  capital  crime  is  of  course  one  punishable  by  death. 
An  infamous  crime  has  been  decided  to  be  one  for  which 
an  infamous  punishment  may  be  inflicted.  Imprisonment 
in  a  state  prison  or  penitentiary  is  an  infamous  punish- 
ment, also  deprivation  of  ordinary  civil  or  political  privi- 
leges. Perhaps  also  are  punishments  that  have  come  to 
be  regarded  by  public  opinion  as  infamous  though  not  so 
regarded  forxrieriy,  like  whipping  or  putting  in  the 
stocks  (23). 

Section  5.     Miscellaneous  Rights. 

§126.  Notice.  Witnesses.  Counsel.  ''[In  all  crim- 
inal prosecutions  the  accused  shall  enjoy  the  right]  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be 


(25)     Ex  parte  Wilson,  114  U.  S.  417. 


FUNDAMENTAL  RIGHTS  107 

confronted  with  the  witnesses  against  him ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and 
to  have  the  assistance  of  counsel  for  his  defense"  (26). 

These  topics  are  fully  considered  in  the  article  upon 
Criminal  Procedure  in  Volume  III  of  this  work. 

§  127.  Excessive  bail  and  fines.  The  Eighth  Amend- 
ment to  the  Constitution  provides:  ''Excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted."  This  is  a  limitation 
upon  the  Federal  government  only,  though  most  of  the 
state  constitutions  contain  similar  provisions  applicable 
to  the  state  governments. 

Very  serious  offences  which  are  punishable  by  death  or 
life  imprisonment,  are  ordinarily  not  bailable.  When  the 
offence  is  bailable,  the  amount  of  bail  that  may  properly 
be  required  under  this  provision  of  the  Constitution  is  to 
be  determined  by  a  consideration  both  of  the  magnitude 
of  the  offence  and  of  the  ability  of  the  defendant  to  give 
bail.  A  wide  latitude  in  determining  these  questions  must 
necessarily  be  allowed  to  the  magistrate  to  whom  applica- 
tion is  made  (27).  The  same  considerations  doubtless 
apply  in  determining  what  is  an  excessive  fine. 

§  128.  Cruel  and  unusual  punishments.  What  is  a  cruel 
and  unusual  punishment  must  be  determined  with  re- 
spect to  the  prevailing  usages  of  government  and  the  con- 
dition of  public  opinion  at  the  time  the  question  arises. 
In  earlier  and  more  barbarous  ages,  torture  and  mutila- 
tion were  common  punishments,  and  perhaps  could  not 


(26)  Const,  Amend.  VI. 

(27)  U.  S.  V.  Lawrence,  4  Cranch,  518. 


108  COxNSTlTUTlONAL  LAW. 

then  have  beeu  denominated  cruel  and  unusual.  Such 
punishments,  in  the  present  state  of  public  opinion,  would 
undoubtedly  violate  the  Constitution  (28). 

A  punishment  is  not  unconstitutional  merely  on  account 
of  its  novelty,  unless  it  is  also  cruel.  For  instance,  the 
execution  of  the  death  penalty  by  means  of  electricity, 
instead  of  hanging,  is  not  a  cniel  punishment  in  the  con- 
stitutional sense.  It  does  not  shock  public  opinion  as 
would  torture  (29). 

On  the  other  hand,  chaining  a  prisoner  by  the  neck  with 
a  trace-chain  and  padlock  so  that  he  could  neither  lie  nor 
sit,  and  leaving  him  thus  chained  in  darkness  for  several 
hours  is  a  cruel  and  unusual  punishment  (30). 

Where  a  defendant  has  committed  a  number  of  minor 
offences,  which  are  slight  in  themselves,  but  the  penalties 
for  which  in  the  aggregate  are  very  heavy,  it  is  a  debated 
question  whether  the  infliction  of  the  aggregate  penalties 
is  unconstitutional  or  not.  In  one  case  a  city  ordinance 
punished  the  destruction  of  plants  in  the  public  square 
by  a  fine  of  $10  or  imprisonment  for  30  days.  The  de- 
fendant was  convicted  upon  72  charges  of  this  offence,  all 
committed  within  the  space  of  one  hour  and  forty  min- 
utes, making  a  total  fine  of  $720  or  six  years  in  jail.  This 
fine  was  held  excessive  and  the  punishment  cruel  and  un- 
usual, the  reasoning  turning  in  part  upon  the  fact  that  the 


(28)  In  re  Kemmler,  136  U.  S.  436. 

(29)  Kemmler  v.  Durston,  119  N.  Y.  569. 

(30)  Re  Birdsong,  39  Fed.  599. 


FUNDAMENTAL  RIGHTS  109 

offences  were  not  really  separate  but  continuous,  inas- 
much  as  one  was  charged  for  each  minute  and  a  half  of  the 
time  (31). 

On  the  other  hand,  a  defendant  was  convicted  in  Ver- 
mont of  sending  out  from  his  store,  upon  separate  orders, 
307  different  consignments  of  liquor  in  violation  of  the 
prohibition  law.  The  offenses  were  committed  during  a 
period  of  three  years  and  each  one  was  punishable  by  a 
fine  of  $20  and  imprisonment  for  one  month,  making  a 
total  fine  of  over  $6,000  and  imprisonment  for  over  twen- 
ty-five years.    The  sentence  was  upheld,  the  court  saying : 

*'If  he  has  subjected  himself  to  a  severe  penalty,  it  is 
simply  because  he  has  committed  a  great  many  such  of- 
fences. It  would  scarcely  be  competent  for  a  person  to 
assail  the  constitutionality  of  the  statute  prescribing  a 
punishment  for  burglary,  on  the  ground  that  he  had  com- 
mitted so  many  burglaries  that,  if  punishment  for  each 
were  inflicted  on  him,  he  might  be  kept  in  prison  for  life. 
The  mere  fact  that  cumulative  punishments  may  be  im- 
posed for  distinct  offenses  in  the  same  prosecution  is  not 
material  upon  this  question.  If  the  penalty  were  unrea- 
sonably severe  for  a  single  offense,  the  constitutional 
question  might  be  urged;  but  here  the  unreasonableness 
is  only  in  the  number  of  offenses  which  the  respondent 
has  committed"  (32). 

§129.    Double  jeopardy.     ''Nor  shall  any  person  be 


(31)  State  V.  Whittaker,  48  La.  Ann.  527. 

(32)  State  v.  O'Neil,  58  Vt.  p.  165. 

Vol.  XII— 9 


110  CONSTITUTIONAL  LAW. 

subject  for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb"  (33). 

This  topic  is  fully  discussed  in  the  article  upon  Crim- 
inal Procedure,  §§52-53,  in  Volume  III  of  tiiis  work. 


(33)     Const,  Amena.  V. 


CHAPTER  Vn. 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW: 
PROCEDURE. 

Section  1.    Due  Peocess  of  Law. 

§  130.  General  requisites  of  due  process  in  procedure. 
The  Fifth  Amendment  forbids  the  United  States  govern- 
ment to  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  The  Fourteenth  Amend- 
ment enacts  the  same  prohibition  against  the  states.  This 
general  prohibition,  as  we  shall  see,  applies  not  only  to 
matters  of  procedure,  but  to  matters  of  substantive  right, 
independently  of  the  procedure  employed;  but  in  this 
section  we  consider  the  meaning  of  the  phrase  only  as 
concerns  procedure. 

''The  essential  elements  of  due  process  of  law,  already 
established,  are  singularly  few,  though  of  wide  application 
and  deep  significance.  We  are  not  here  concerned  with  the 
effect  of  due  process  in  restraining  substantive  laws,  as, 
for  example,  that  which  forbids  the  taking  of  private 
property  for  public  use  without  compensation.  We  need 
notice  now  only  those  cases  which  deal  with  the  principles 
which  must  be  observed  in  the  trial  of  criminal  and  civil 
causes.  Due  process  requires  that  the  court  which  as- 
sumes to  determine  the  rights  of  parties  shall  have  Juris- 
diction, and  that  there  shall  be  notice  and  opportunity 

111 


U2  CONSTITUTIONAL  LAW. 

for  hearing  given  the  parties.  Subject  to  these  two  fun- 
damental conditions,  which  seem  to  be  universally  pre- 
scribed in  all  systems  of  law  established  by  civilized  coun- 
tries, this  court  has  up  to  this  time  sustained  all  state 
laws,  statutory  or  judicially  declared,  regulating  proced- 
ure, evidence,  and  methods  of  trial,  and  held  them  to  be 
consistent  with  due  process  of  law"  (1). 

§  131.  Jurisdiction.  Whether  a  tribunal  has  jurisdic- 
tion to  render  a  given  judgment  or  not  depends  upon  the 
kind  of  judgment  sought  and  what  control  the  court  has 
over  the  person,  thing,  or  relation  to  be  affected  thereby. 
Thus,  if  a  judgment  is  sought  against  X  personally,  that 
he  pay  money  or  do  some  act,  the  court  must  have  gained 
control  over  the  person  of  X.  This  it  is  considered  to 
have  when  X  is  domiciled  (resident)  within  the  territorial 
limits  of  the  state,  or  is  served  there  with  the  court's  proc- 
ess, or  consents  to  subject  himself  to  its  jurisdiction. 
That  he  leaves  the  state  afterwards  before  judgment  is 
rendered  makes  no  difference.  Service  of  process  upon  a 
non-resident  by  publication  is  therefore  invalid,  and  a 
personal  judgment  based  upon  this  is  of  no  effect,  even 
where  rendered,  because  not  due  process  of  law  (2).  If 
the  object  to  be  affected  by  the  judgment  is  corporeal 
property,  it  must  be  within  the  territorial  limits  of  the 
state.  Thus  a  state  may,  by  appropriate  legislation,  val- 
idly confer  upon  its  courts  power  to  dispose  of  the  inter- 
ests of  non-resident  owners  of  domestic  land,  or  of  the 
property  of  persons  who  have  been  absent  and  unheard  of 


(1)  Twining  v   New  Jersey,  211  U    S.  78,  110-111, 

(2)  Pennoyer  v.  Neff,  Q'j  L'.  S.  714. 


FUNDAMENTAL  RIGHTS  113 

for  seven  years  (3).  Where  a  relation  between  two  per^ 
sons  is  to  be  affected,  it  likewise  must  be  subject  to  appro- 
priate control  where  the  proceedings  are  held.  Thus,  the 
garnishment  of  a  debt  may  be  made  where  the  debtor 
alone  is,  because  it  can  there  be  made  effective  by  com- 
pelling the  debtor  to  pay  it  (4).  Compare  the  jurisdic- 
tional requirement  for  taxing  a  debt  as  property,  or  taxing 
its  transfer  (§§176,  184,  below).  When  the  relation  to  be 
affected  is  the  marriage  bond,  there  is  no  jurisdiction  to 
dissolve  it  in  a  state  where  neither  party  is  domiciled  (5). 
The  requirements  of  jurisdiction  to  make  judgments  of 
various  kinds  valid,  outside  of  the  state  where  rendered, 
are  discussed  in  Conflict  of  Laws,  Chapter  VI,  in  Volume 
IX  of  this  work.  Of  course,  whatever  satisfies  these  re- 
quirements is  due  process  of  law  where  rendered,  within 
the  Fourteenth  Amendment. 

§  132.  Any  procedure  giving  notice  and  fair  hearing 
is  valid.  In  addition  to  jurisdiction,  due  process  of  law, 
in  point  of  procedure,  ordinarily  requires  a  fair  hearing 
before  some  impartial  tribunal  (not  necessarily  a  court), 
with  due  notice  to  parties  to  be  affected,  opportunity  to 
be  heard,  and  a  trial  according  to  some  orderly  course  of 
proceedings.  If  these  essentials  be  afforded,  in  any  case 
to  which  they  may  be  appropriate,  the  requirements  of 
due  process  is  fulfilled,  even  though  the  precise  procedure 
be  in  other  respects  wholly  novel.  For  instance,  before 
1879  California  required,  in  accordance  with  prevailing 


(3)  Arndt  v.   Griggs,   134  U.   S.  316;    Cunnius  v.  Reading  School 
Dist,  198  U.  S.  458. 

(4)  Chicago,  etc.  Ry.  v.  Sturm,  174  U.  S.  710. 

(5)  Bell  V.  Bell,  181  U.  S.  175. 


U4  CONSTITUTIONAL  LAW. 

American  usage,  that  persons  charged  with  serious  crime 
be  indicted  by  a  grand  jury  before  they  could  be  put  on 
trial.  The  new  state  constitution  adopted  in  that  year 
permitted  criminals  to  be  charged  with  crime  by  informa- 
tion lodged  before  a  magistrate.  To  the  objection  that 
this  procedure  was  not  due  process,  because  so  different 
from  the  English  and  Califomian  usage  before  1879,  the 
Supreme  Court  said  that  while  procedure  sanctioned  by 
settled  usage  in  England  and  this  country  was  due  proc- 
ess, it  by  no  means  followed  that  nothing  else  was.  To 
hold  otherwise  "would  be  to  deny  every  quality  of  the 
law  but  its  age,  and  to  render  it  incapable  of  progress  or 
improvement.  It  would  be  to  stamp  upon  our  jurispru- 
dence the  unchangeableness  attributed  to  the  laws  of  the 
Medes  and  Persians.  .  .  . 

*'Tlie  Constitution  of  the  United  States  was  ordained, 
it  is  true,  by  descendants  of  Englishmen,  who  inherited 
the  traditions  of  English  law  and  history ;  but  it  was  made 
for  an  undefined  and  expanding  future,  and  for  a  people 
gathered  and  to  be  gathered  from  many  nations  and  of 
many  tongues.  And  while  we  take  just  pride  in  the  prin- 
ciples and  institutions  of  the  common  law,  we  are  not  to 
forget  that  in  lands  where  other  systems  of  jurisprudence 
prevail,  the  ideas  and  processes  of  civil  justice  are  also 
not  unknown.  Due  process  of  law,  in  spite  of  the  abso- 
lutism of  continental  governments,  is  not  alien  to  that 
code  which  survived  the  Eoman  Empire  as  the  foundation 
of  modern  civilization  in  Europe.  .  .  .  There  is  noth- 
ing in  Magna  Charta,  rightly  construed  as  a  broad  charter 
of  public  right  and  law,  which  ought  to  exclude  the  best 


FUNDAMENTAL  RIGHTS  115 

ideas  of  all  systems  and  of  every  age ;  and  as  it  was  the 
characteristic  princijjle  of  the  common  law  to  draw  its 
inspiration  from  every  fountain  of  justice,  we  are  not 
to  assume  that  the  sources  of  its  supply  have  been  ex- 
hausted. On  the  contraiy,  we  should  expect  that  the  new 
and  various  experiences  of  our  own  situation  and  system 
will  mould  and  shape  it  into  new  and  not  less  useful 
forms"  (6). 

Upon  the  same  principle  it  has  been  held  that  a  state 
may  abolish  jury  trials  in  both  civil  and  criminal  cases, 
without  violating  the  requirement  of  due  process  of  law, 
provided  that  the  new  proceeding  affords  a  fair  trial  (7). 
Similarly,  statutes  forbidding  the  sale  of  liquor  may  be 
made  enforceable  by  injunctions  in  courts  of  equity,  in- 
stead of  by  jury  trials  in  common  law  courts  (8). 

*'It  is  clear  that  the  Fourteenth  Amendment  in  no  way 
undertakes  to  control  the  power  of  a  state  to  determine 
by  what  process  legal  rights  may  be  asserted  or  legal 
obligations  be  enforced,  provided  that  the  methods  of  pro- 
cedure adopted  for  this  process  give  reasonable  notice 
and  afford  fair  opportunity  to  be  heard  before  the  issues 
are  decided"  (9). 

§  133.  Procedure  according  to  settled  usage  is  valid. 
In  addition  to  procedure  that  secures  a  fair  hearing,  any 
other  procedure  that  is  according  to  the  settled  usage  of 
England  and  of  the  American  colonies  is  due  process  of 


(6)  Hurtado  v,  California,  110  U.  S.  516.  529,  530-31. 

(7)  Maxwell  v.  Dow,  176  U.  S.  581. 

(8)  Eilenbecker  v.  Plymouth  County.  134  U.  S.  31. 

(9)  Iowa  Central  Railway  v.  Iowa,  160  U.  S.  389,  393. 


IIG  CONSTITUTIONAL  LAW. 

law,  even  though  not  involviug  a  hearing.  An  act  of 
Congress  provided  that  when  a  Federal  revenue  collector 
was  found  indebted  to  the  United  States  by  the  Treasur}^ 
Department  his  property  could  be  seized  and  sold  to  sat- 
isfy this  claim,  without  any  notice  or  hearing.  The  Su- 
preme Court  held  this  historically  to  be  due  process  of 
law.    It  said: 

"The  article  is  a  restraint  on  the  legislative  as  well 
as  on  the  executive  and  judicial  powers  of  the  govern- 
ment, and  cannot  be  so  construed  as  to  leave  Congress 
free  to  make  any  process  'due  process  of  law,'  by  its 
mere  will.  To  what  principles,  then,  are  we  to  resort 
to  ascertain  whether  this  process,  enacted  by  Congress,  is 
due  process!  To  this  the  answer  must  be  two-fold.  We 
must  examine  the  Constitution  itself,  to  see  whether  this 
process  be  in  conflict  with  any  of  its  provisions.  If  not 
found  to  be  so,  we  must  look  to  those  settled  usages  and 
modes  of  proceeding  existing  in  the  common  and  statute 
law  of  England,  before  the  emigration  of  our  ancestors, 
and  which  are  shown  not  to  have  been  unsuited  to  their 
civil  and  political  condition  by  having  been  acted  on  by 
them  after  the  settlement  of  this  country.     .     .     . 

''Tested  by  the  common  and  statute  law  of  England 
prior  to  the  emigration  of  our  ancestors,  and  by  the  laws 
of  many  of  the  states  at  the  time  of  the  adoption  of  this 
amendment,  the  proceedings  authorized  by  the  act  of  1820 
cannot  be  denied  to  be  due  process  of  law,  when  applied  to 
the  ascertainment  and  recovery  of  balances  due  to  the 
government  from  a  collector  of  customs.  .  .  .  For, 
though  'due  process  of  law'  generally  implies  and  in- 


FUNDAMENTAL  RIGHTS  117 

eludes,  actor,  reus,  judex  (10),  regular  allegations,  oppor- 
tunity to  answer,  and  a  trial  according  to  some  settled 
course  of  judicial  proceedings,  yet  this  is  not  universally 
true.  .  .  .  Though,  generally,  both  public  and  private 
wrongs  are  redressed  through  judicial  action,  there  are 
more  summary  extra-judicial  remedies  for  both.  An  in- 
stance of  extra-judicial  redress  of  a  private  wrong  is,  the 
recapture  of  goods  by  their  lawful  owner;  of  a  public 
wrong,  by  a  private  person,  is  the  abatement  of  a  public 
nuisance;  and  the  recovery  of  public  dues  by  summary 
process  of  distress,  issued  by  some  public  officer  author- 
ized by  law,  is  an  instance  of  redress  of  a  particular  kind 
of  public  wrong,  by  the  act  of  the  public  through  its  au- 
thorized agents"  (11). 

§  134.  Summary  destruction  of  personal  property. 
Similar  principles  apply  to  the  power  of  government  sum- 
marily to  destroy  a  person's  property  used  for  illegal  pur- 
poses or  which  has  become  a  nuisance.  A  New  York  stat- 
ute authorized  the  summary  destruction  of  nets  used  in 
illegal  fishing,  and  was  upheld,  although  the  destruction 
preceded  any  judicial  inquiry  regarding  the  guilt  of  the 
owner.    The  Supreme  Court  said : 

''Where  the  property  is  of  little  value,  and  its  use  for 
the  illegal  purpose  is  clear,  the  legislature  may  declare 
it  to  be  a  nuisance,  and  subject  to  summary  abatement. 
Instances  of  this  are  the  power  to  kill  diseased  cattle ;  to 
pull  down  houses  in  the  path  of  conflagrations;  the  de- 


(10)  Plaintiff,  defendant,  judge. 

(11)  Murray  v.  Hoboken  Land  Company,  18  How.  272,  276-7,  278, 
280. 


lis  CONSTITUTIONAL  LAW. 

struction  of  decayed  fruit  or  fish  or  unwholesome  meats, 
or  infected  clothing,  obscene  books  or  pictures,  or  instru- 
ments which  can  only  be  used  for  illegal  purposes.    .    .    . 

"Nor  is  a  person  whose  property  is  seized  under  the 
act  in  question  without  his  legal  remedy.  If  in  fact  his 
property  has  been  used  in  violation  of  the  act,  he  has  no 
just  reason  to  comjilain;  if  not,  he  may  replevy  his  nets 
from  the  officer  seizing  them,  or,  if  they  have  been  de- 
stroyed, may  have  his  action  for  their  value.  In  such 
cases  the  burden  would  be  upon  the  defendant  to  prove  a 
justification  under  the  statute"  (12). 

§  135.  Exercise  of  legislative  power  by  boards.  When 
the  legislature  passes  a  law,  it  is  of  course  not  necessary 
to  the  validity  of  the  law  that  it  be  preceded  by  a  notice 
or  hearing  to  persons  who  will  be  affected  by  it.  A  legis- 
lature may,  for  instance,  forbid  the  killing  of  certain 
kinds  of  game  at  certain  seasons,  or  may  regulate  the 
hours  in  certain  occupations,  and  so  forth,  and,  if  what  it 
does  is  really  not  unreasonable  or  arbitrary,  its  acts  are 
not  invalid  merely  because  no  hearing  is  afforded  to 
parties  affected  by  its  legislation.  Wherever  the  legisla- 
tive power  of  regulation  may  be  exercised  more  effectively 
in  regard  to  details  by  delegating  it  to  a  commission,  this 
is  ordinarily  upheld.  Where  the  delegation  of  power  is 
valid  the  commission  to  which  it  is  delegated  may  ordi- 
narily exercise  it  in  the  same  manner  as  the  legislature 
can,  and  therefore  need  not  give  a  hearing  to  interested 
parties  before  making  its  regulations. 


(12)    Lawton  V.  Steele,  152  U.  S.  133,  140-42. 


FUNDAMENTAL  RIGHTS  119 

A  Massachusetts  statute  provided  that  where  the  fish 
in  streams  were  of  sufficient  importance  to  warrant  the 
regulation  of  the  discharge  of  sawdust  into  streams  where 
it  materially  injured  the  fish,  the  fish  commission  might 
make  an  order  regulating  or  forbidding  this  disposal  of 
sawdust.  The  fish  commission  acting  under  this  statute, 
ordered  one  Sisson  not  to  discharge  sawdust  into  the 
Konkapot  river,  acting  upon  their  own  investigation  and 
without  giving  any  hearing  to  Sisson.  The  Massachusetts 
Supreme  Court  upheld  the  order,  saying: 

**In  our  opinion  the  action  of  the  board  in  the  case  at 
bar  was  the  working  out  of  details  under  a  legislative  act. 
The  board  is  no  more  required  to  act  on  sworn  evidence 
than  is  the  legislature  itself,  and  no  more  than  in  case  of 
the  legislature  itself  is  it  bound  to  act  only  after  a  hearing 
or  to  give  a  hearing  to  the  plaintiff  when  he  asks  for  one ; 
and  its  action  is  final,  as  is  the  action  of  the  legislature  in 
enacting  a  statute.  And  being  legislative,  it  is  plain  that 
the  questions  of  fact  passed  upon  by  the  commissioners 
in  adopting  the  provisions  enacted  by  them  cannot  be  tried 
over  by  the  court"  (13). 

§  136.  Proper  procedure  for  taxation  and  eminent  do- 
main. AVhere  property  is  to  be  taken  by  the  government, 
whether  under  its  power  of  eminent  domain  or  of  taxa- 
tion, the  proceedings  thereto  must  comply  with  the  re- 
quirements of  due  process  of  law.  These  requirements, 
however,  are  not  necessarily  the  same  in  such  cases  as  in 
other  controversies.    "In  judging  what  is  'due  process  of 


(13)     Commonwealth  v.  Sisson,  189  Mass.  p.  252. 


120  CONSTITUTIONAL  LAW 

law'  respect  must  be  had  to  the  cause  and  object  of  the 
taking,  whether  under  the  taxing  power,  the  power  of 
eminent  domain,  or  the  power  of  assessment  for  local  im- 
provements, or  some  of  these ;  and  if  found  to  be  suitable 
or  admissible  in  the  special  case,  it  will  be  adjudged  to 
be  'due  process  of  law,'  but  if  found  to  be  arbitrary,  op- 
pressive, and  unjust,  it  may  be  declared  to  be  not  'due 
process  of  law'  "  (14). 

"Of  the  different  kinds  of  taxes  which  the  state  may 
impose,  there  is  a  vast  number  of  which,  from  their  na- 
ture, no  notice  can  be  given  to  the  tax-payer,  nor  would 
notice  be  of  any  possible  advantage  to  him,  such  as  poll 
taxes,  license  taxes  (not  dependent  upon  the  extent  of  his 
business),  and  generally,  specific  taxes  on  things,  br  per- 
sons, or  occupations.  In  such  cases  the  legislature,  in 
authorizing  the  tax,  fixes  its  amount,  and  that  is  the  end 
of  the  matter.  If  the  tax  be  not  paid,  the  property  of  the 
delinquent  may  be  sold,  and  he  be  thus  deprived  of  his 
property.  Yet  there  can  be  no  question,  that  the  proceed- 
ing is  due  process  of  law,  as  there  is  no  inquiry  into  the 
weight  of  e\'idence,  or  other  element  of  a  judicial  nature, 
and  nothing  could  be  changed  by  the  hearing  of  the  tax- 
payer.   No  right  of  his  is,  therefore,  invaded.  .  .  . 

''But  where  a  tax  is  levied  on  property  not  specifically, 
but  according  to  its  value,  to  be  ascertained  by  assessors 
appointed  for  that  purpose  upon  such  evidence  as  they 
may  obtain,  a  different  principle  comes  in.  The  officers 
in  estimating  the  value  act  judicially ;  and  in  most  of  the 


(14)     Davidson  v.  New  Orleans,  96  U.  S.  97,  107. 


FUNDAMENTAL  RIGHTS  121 

states  provision  is  made  for  the  correction  of  errors  com- 
jnitted  by  them  .  .  .  The  law,  in  prescribing  the  time 
when  such  complaints  will  be  heard,  gives  all  the  notice 
required,  and  the  proceeding  by  which  the  valuation  is 
determined,  though  it  may  be  followed,  if  the  tax  be  not 
paid,  by  a  sale  of  the  delinquent's  property,  is  due  proc- 
ess of  law"  (15). 

In  any  case  where  the  amount  of  the  tax  is  made  to 
depend  upon  questions  of  fact,  like  those  of  value,  benefit, 
amount  of  property,  and  the  like,  a  fair  hearing  must  be 
granted  at  some  stage  of  the  proceeding  in  order  to  sat- 
isfy the  requirements  of  due  process  (16).  Similar  rules 
apply  to  the  exercise  of  the  power  of  eminent  domain.  No 
hearing  can  be  required  upon  legislative  questions  in- 
volved, like  the  necessity  of  the  taking  (see  §  212,  below) 
but  one  must  be  given  to  ascertain  the  value  of  the  prop- 
erty taken. 

§  137.  Procedure  in  matters  over  which  government 
has  absolute  control.    Wherever  the  government  has  ab- 

I 

solute  control  over  a  certain  class  of  acts,  or  may  wholly 
, prohibit  them  under  its  legislative  powers,  it  may  permit 
them  conditionally.    In  such  a  case  the  fulfillment  of  the 
'teiTQs  of  the  conditions  exacted  may  be  determined  by  an 
administrative  officer  without  even  a  hearing  to  those 
interested.    The  power  absolutely  to  forbid  carries  with 
it  the  lesser  power  to  permit  upon  hard  terms.    Some  in- 
stances of  this  are  to  be  found  in  the  practice  of  the 
=  United  States  regarding  admission  to  this  country  of  for- 


ds)     Hagar  v.  Reclamation  District,  111  U.  S.  701,  709-10. 
(16)     Norwood  v.  Baker,  172  U.  S.  269- 


122  CONSTITUTIONAL  LAW. 

eign  imports  and  aliens.  Congress  may  absolutely  ex- 
clude these,  but  instead  it  lias  chosen  to  admit  them  on  ; 
certain  terms  that  do  not  always  require  a  fair  hearing 
upon  the  questions  involved.  A  United  States  statute 
provided  that  a  board  should  establish  certain  standards 
for  imported  tea,  and  that  any  such  tea  falling  below  such 
star.dards  should  be  rejected  by  the  examiners,  and  if  not 
shipped  out  of  the  country  within  six  months  from  the 
time  of  rejection  should  be  destroyed.  Certain  tea  im-  ' 
ported  by  one  Buttfield  was  rejected  and  destroyed,  ac- 
cording to  the  statute,  by  the  collector  of  the  port  of  New 
york.  He  was  sued  therefor  by  Buttfield,  who  alleged, 
among  other  things,  that  he  was  not  accorded  a  hearing 
regarding  the  quality  of  his  tea  when  it  was  examined ; 
but  the  procedure  established  by  the  statute  was 
upheld  (17). 

§  138.    Judicial  tribunal  not  necessary.    Even  in  cases   .^ 
where  due  process  of  law  requires  a  fair  hearing,  this   i^ 
hearing  need  not  be  before  a  judge,  or  court,  or  other   i 
strictly  judicial  tribunal.    There  is  nothing  in  the  nature  :>' 
of  a  fair  hearing  which  requires  that  in  every  case  it  1: 
need  be  before  a  court.    In  the  absence  of  other  constitu-  k 
tional  provisions  especially  requiring  particular  tribunals,  {;. 
like  courts  or  juries,  a  state  may  commit  the  determina-  ^ 
tion  of  litigated  controversies  of  all  kinds  to  boards,  com- 
missions, inspectors,  or  other  officers.    Due  process  of  law 
does  not  even  necessarily  require  that  the  officers  who 
discharge  judicial  functions  shall  not  also  be  connected 


(17)     Bnttnekl  v.  Strauaban.  192  U.  S.  470.     See  also  Oceanic  S. 
Nav.  Co.  V.  Strauaban,  214  T'.  S.  320. 


FUNDAMENTAL  RIGHTS  123 

with  other  departments  of  government.  That  is,  it  does 
not  require  a  separation  of  the  three  great  departments 
of  government,  executive,  legislative  and  judicial.  This 
is  required,  if  at  all,  by  other  parts  of  our  constitutions. 
''Suppose  a  state,  by  its  constitution,  grants  legislative 
functions  to  the  executive,  or  to  the  judiciary,  what  pro- 
vision of  the  Federal  Constitution  will  nullify  the 
action?"  (18). 

Today  an  ever  increasing  number  of  controversies  are 
arising  between  the  government,  represented  by  various 
boards,  commissions,  or  administrative  officers,  on  one 
side,  and  private  individuals  on  the  other.    These  ques- 
tions, when  not  of  a  criminal  nature,  are  coming  to  be 
known  as  "administrative  questions"  and  they  are  fre- 
1    quently  required  by  law  to  be  settled  by  administrative 
I    officers  without  permitting  any  appeal  to  the  courts. 
\    Among  such  matters  that  may  be  wholly  committed  to  ad- 
ministrative determination,  provided  only  that  there  be 
'   no  fraud  or  other  abuse  of  authority,  are  the  following: 
I    The  administration  of  the  public  land  system,  the  deter- 
I   mination  of  lands  benefited  by  irrigation  schemes,  the 
,   value  of  property  taken  by  the  state  for  public  use,  the 
I   classification  of  the  mail  and  the  exclusion  of  fraudulent 
matter    therefrom,    and    the    appraisal    of    imported 
;  goods  (19). 


j  (18)     Michigan  Central  Railway  v.  Powers,  201  U.  S.  245,  294.  See 

';  also  Dreyer  v.  lU.,  187  U.  S.  71,  83-84. 

.  (19)     Fall   Brook   Irrigation  District  v.   Bradley,   164   U.   S.   pp. 

I  167-70;  Clearing  House  v.  Coyne,  194  U.  S.  497;  Hilton  v.  Merritt,  110 

I  U.  S.  97. 


124  CONSTITUTIONAL  LAW. 

The  most  striking  application  of  this  principle  in  re- 
cent years  is  in  the  case  of  the  United  States  v.  Ju  Toy. 
The  United  States  excluded  alien  Chinese  from  the  United 
States  and  gave  to  the  executive  officers  of  the  Depart- 
ment of  Commerce  the  exclusive  right  to  decide  all  ques- 
tions of  fact  relating  to  the  right  of  Chinese  to  enter  the 
United  States.  When  Ju  Toy  sought  to  enter  the  coun- 
try, and  alleged  that  he  was  a  native-bom  citizen  of  the 
United  States  who  had  temporarily  left  the  country  and 
now  wished  to  return,  the  executive  officer  of  the  Depart- 
ment of  Commerce  decided  that  he  was  not  a  citizen  and 
excluded  him;  whereupon  he  applied  to  the  Federal 
courts,  alleging  that  so  important  a  fact  as  American  citi- 
zenship could  not  be  conclusively  decided  against  him 
without  an  appeal  to  the  courts.  His  claim  was  denied  by 
the  Supreme  Court,  saying:  **If  we  assume  that  the  Fifth 
Amendment  applies  to  him  and  that  to  deny  entrance  to 
a  citizen  is  to  deprive  him  of  liberty,  we  nevertheless  are 
of  the  opinion  that  with  regard  to  him  due  process  of  law 
does  not  require  a  judicial  trial.  .  .  .  The  decision 
may  be  entrusted  to  an  executive  officer  and  .  .  .  his 
decision  is  due  process  of  law'*  (20).  Compare  the  article 
on  Public  Officers,  §105,  in  Volume  IX  of  this  work. 

§  139.  Kind  of  notice  required.  Where  the  proceeding 
is  one  for  which  notice  is  required,  as  in  ordinary  litiga- 
tion, the  contents  of  the  notice  must  apprise  the  defendant 
of  the  nature  of  the  proceeding  against  him,  it  must  be 
given  in  such  a  manner  as  to  come  to  the  attention  of  a 
person  of  reasonable  diligence,  and  it  must  afford  a  suffi- 


(20)     United    States   v.    Ju   Toy,    198   U.    S.   253,   2G3.      But  a  fair 
hearing  must  be  given  on  tlie  question.    Chin  Low  v.  U.  S.,  208  U.  S.  & 


FUNDAMENTAL  RIGHTS  125 

cient  opportunity  to  make  an  answer.  Where  service  of 
process  is  not  necessary  to  acquire  jurisdiction  (§  131, 
above),  as  where  the  action  is  in  rem  regarding  property 
in  the  state,  the  notice  may  be  served  by  publication, 
especially  on  non-residents.  It  is  customary,  though 
probably  not  necessary,  to  send  actual  notice  to  the  de- 
fendant also,  if  his  residence  is  known.  Where  a  notice 
to  defend  a  suit  in  Texas,  regarding  land  there,  was 
served  on  a  defendant  in  Virginia,  which  gave  but  five 
days  in  which  to  appear  and  answer  the  suit,  this  time  was 
held  too  short  to  afford  due  process  (21).  From  four 
to  eig'ht  weeks  are  usually  given  under  such  circum- 
stances. 

§  140.  Erroneous  and  fraudulent  decisions.  If  the 
parties  to  a  litigation  have  been  given  a  fair  hearing  in 
their  case,  in  a  manner  appropriate  to  the  occasion, 
neither  can  complain  that  his  property  has  been  taken 
without  due  process  merely  because  a  court  has  errone- 
ously decided  against  him.  Due  process  does  not  assure 
a  correct  decision,  but  only  a  fair  hearing  (22).  Simi- 
larly, an  erroneous  decision  in  criminal  cases  does  not 
deprive  the  defendant  of  liberty  without  due  process  (23). 

The  requirement  of  due  process  does,  however,  entitle 
a  litigant  to  an  honest,  though  not  a  learned  tribunal.  If 
a  litigant  is  injured  through  the  corruption  or  fraud  of 
the  court  or  other  body  disposing  of  his  case,  he  is  entitled 


(21)  Roller  v.  Holly,  176  U.  S.  398. 

(22)  Central  Land  Company  v.  Laidley,  159  U.  S.  103. 

(23)  In  re  Converse,  137  U.   S.  624.     The  tribunal  must  not  be 
mentally  ineonipefent.     JorcTan  v.  Mass..  225  U.  S.  167. 


Vol    Xil— 10 


12G  CONSTITUTIONAL  LAW 

to  redress  under  this  section  of  the  Constitution  (24).  ' 
^  141.  Denying  or  hindering  access  to  the  courts  upon 
the  question  of  due  process  itself.  The  courts  may  ulti- 
mately decide  that  the  decisions  of  administrative  officers, 
with  or  without  a  hearing  according  to  circumstances,  are 
due  process  of  law,  but  the  final  decision  of  this  ultimate 
question  cannot  be  conclusively  confided  to  any  non-judi- 
cial tribunal.  Any  legislative  attempt  to  do  this,  whether 
by  direct  denial  of  access  to  the  courts  upon  this  question, 
or  by  hindering  such  access  by  making  resort  to  the  courts 
upon  it  difficult,  expensive,  or  hazardous,  all  alike  violate 
the  constitutional  provision. 

Some  years  ago  the  Minnesota  legislature  created  a 
railway  commission  upon  which  it  attempted  to  confer  the 
power  of  fixing  railway  rates  and  determining  conclu- 
sively, without  any  hearing,  that  they  were  lawful  and 
reasonable.  The  United  States  Supreme  Court  held  the 
statute  unconstitutional.    It  said: 

*'In  the  present  case,  the  return  alleged  that  the  rate 
of  charge  fixed  by  the  commission  was  not  equal  or  rea- 
sonable, and  the  supreme  court  held  that  the  statute 
deprived  the  company  of  the  right  to  show  that  judicially. 
The  question  of  the  reasonableness  of  a  rate  of  charge  for 
transportation  by  a  railroad  company,  involving  as  it 
does  the  element  of  reasonableness  both  as  regards  the 
company  and  as  regards  the  public,  is  eminently  a  ques- 
tion for  judicial  investigation,  requiring  due  process  of 


(24)  Fall  Brook  Irrigation  District  v.  Bradley,  164  U.  S.  pp. 
1G7-70;  Louisville  &  Nashville  Railway  Co.  v.  Kentucky,  183  U.  S.  pp. 
515-16;  C.  B.  &  Q.  Railway  v.  Babcock,  204  U.  S.  585. 


FUNDAMENTAL  RIGHTS  127 

law  for  its  determination.  If  the  company  is  deprived 
of  the  power  of  charging  reasonable  rates  for  the  use  of 
its  property,  and  such  deprivation  takes  place  in  the  ab- 
sence of  an  investigation  by  judicial  machinery,  it  is 
deprived  of  the  lawful  use  of  its  property,  and  thus,  in 
substance  and  effect,  of  the  property  itself,  without  due 
process  of  law  and  in  violation  of  the  Constitution  of  the 
United  States"  (25). 

Still  more  recently  this  principle  was  affirmed  in:  an- 
other case  from  Minnesota.  A  state  statute  prescribed 
certain  railroad  rates  and  made  each  separate  act  of  dis- 
obedience thereto,  by  charging  a  higher  rate,  a  felony, 
subject  to  imprisonment  for  a  period  not  exceeding  five 
years  and  a  fine  not  exceeding  $5,000.  The  court  held 
these  penalties  invalid.    It  said; 

"When  the  penalties  for  disobedience  are  by  fines  so 
enormous  and  imprisonment  so  severe  as  to  intimidate 
the  company  and  its  officers  from  resorting  to  the  courts 
to  test  the  validity  of  the  legislation,  the  result  is  the 
same  as  if  the  law  in  terms  prohibited  the  company  from 
seeking  judicial  construction  of  laws  which  deeply  affect 
its  rights. 

"It  is  urged  that  there  is  no  principle  upon  which  to 
base  the  claim  that  a  person  is  entitled  to  disobey  a  stat- 
ute at  least  once,  for  the  purpose  of  testing  its  validity 
without  subjecting  himself  to  the  penalties  for  disobedi- 
ence provided  by  the  statute  in  case  it  is  valid.  This  is 
not  an  accurate  statement  of  the  case.    Ordinarily  a  law 


(25)     Chicago,  etc.,  Ry.  v.  Minnesota,  134  U.  S.  p.  458. 


128  CONSTITUTIONAL  LAW 

creating  offenses  in  the  nature  of  misdemeanors  or  fel- 
onies relates  to  a  subject  over  which  the  jurisdiction  of 
the  legislature  is  complete  in  any  event.  In  the  case, 
however,  of  the  establishment  of  certain  rates  without  any 
hearing,  the  validity  of  such  rates  necessarily  depends 
upon  whether  they  are  high  enough  to  permit  at  least 
some  return  upon  the  investment  (how  much  it  is  not  now 
necessary  to  state),  and  an  inquiry  as  to  that  fact  is  a 
proper  subject  of  judicial  investigation"  (26). 

§  142.  Self-incrimination  not  forbidden.  Confronting 
witnesses  not  required.  Most  constitutions  now  contain 
provisions  shielding  a  person  accused  of  crime  from  be- 
ing compelled  to  testify  against  himself.  The  Fifth 
Amendment  lays  this  prohibition  upon  the  United  States 
government,  but  it  is  not  expressly  prohibited  to  the 
states  in  the  national  Constitution.  Recently  it  was  urged 
that  due  process  required  that  a  defendant  in  a  criminal 
case  should  not  be  compelled  to  testify  against  himself, 
but  this  was  denied  in  an  able  opinion  by  the  United 
States  Supreme  Court  (27).  It  was  shown  historically 
that  the  provision  requiring  due  process  of  law  was  in 
Magna  Charta,  while  the  practice  of  compulsory  incrim- 
ination existed  in  the  English  courts  for  four  or  five  hun- 
dred years  thereafter,  that  it  secured  a  foothold  in  the 
colonies,  and  was  not  forbidden  by  the  New  York  consti- 
tution until  1821,  nor  by  Rhode  Island  until  1842. 

The  same  has  been  held  regarding  the  ordinary  con- 


(26)  Ex  parte  Young,  209  U.  S.  123,  147-8. 

(27)  Twining  v.  New  Jersey,  211  U.  S.  78. 


FUNDAMENTAL  RIGHTS  129 

stitutional  provision  that  persons  accused  of  crime  must 
be  confronted  with  the  witnesses  against  them  (27a). 

Section  2.      Equal,  Peotection  of  the  Laws. 

§  143.  Discriminatory  exclusion  from  jury  service. 
One  of  the  clauses  of  the  Fourteenth  Amendment,  sec- 
tion 1,  forbids  a  state  to  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws.  Most  of  the 
cases  that  have  interpreted  this  clause  have  involved 
laws  that  attempted  arbitrarily  to  discriminate  between 
persons  in  respect  to  matters  of  substantive  right,  rather 
than  those  of  procedure.  Of  the  few  cases  that  have 
arisen  where  procedure  was  held  to  be  improperly  dis- 
criminating, the  leading  one  is  Strauder  v.  West  Virginia 
(28),  The  laws  of  West  Virginia  made  colored  men  in- 
eligible for  jury  service.  A  negro  was  tried  and  con- 
victed by  a  jury  from  which  all  persons  of  his  race  were 
thus  excluded,  and  he  carried  the  case  to  the  United 
States  Supreme  Court.    The  court  said: 

"The  words  of  the  amendment,  it  is  true,  are  prohibi- 
tory, but  they  contain  a  necessary  implication  of  a  posi- 
tive immunity,  or  right,  most  valuable  to  the  colored  race 
— the  right  to  exemption  from  unfriendly  legislation 
against  them  distinctively  as  colored.  .  .  .  That  the 
West  Virginia  statute  respecting  juries — the  statute  that 
controlled  the  selection  of  the  grand  and  petit  jury  in  the 
case  ef  the  plaintiff  in  error — is  such  a  discrimination 
ought  not  to  be  doubted.    Nor  would  it  be  if  the  persons 


(27a)     West  v.  Louisiana,  194  U.  S.  258. 

(2S)     Strauder  v.  West  Virginia,  100  U.  S.  303. 


130  CONSTITUTIONAL  LAW 

oxc'lndcd  by  it  were  white  men.  .  .  .  The  statute  of 
West  ^^il•gillia,  discriminating  in  the  selection  of  jurors, 
as  it  does,  against  negroes  because  of  their  color,  amounts 
to  a  denial  of  the  equal  protection  of  the  laws  to  a  colored 
man  when  he  is  put  upon  trial  for  an  alleged  offense 
against  the  state." 

The  same  has  been  held  regarding  the  exclusion  of 
negroes  from  the  grand  jury  (29). 

The  equal  protection  of  the  laws,  however,  does  not  re- 
quire that  any  part  of  a  jury  trying  a  negro  shall  neces- 
sarily be  composed  of  negroes.  It  only  requires  that  they 
shall  not  be  excluded  on  account  of  their  color  from  hav- 
ing a  fair  opportunity  of  being  drawn  to  serve  on  a  jury 
(30) .  Nor  does  the  Constitution  forbid  the  exclusion  from 
juries  of  any  general  class  of  persons  who  through  age, 
sex,  alienage,  or  incapacity,  may  reasonably  be  thought 
not  well  qualified  for  such  service  (31).  Also  persons  en- 
gaged in  various  occupations  may  be  excluded  from  jury 
duty  so  as  not  to  interrupt  their  regular  work  for  the 
community.  Lawyers,  ministers,  doctors,  teachers,  engi- 
neers, etc.,  are  frequently  excluded  on  this  ground  (32). 


I 


(29)  Carter  v.  Texas,  177  U.  S  442. 

(30)  Virginia  v.  Rivers,  100  U.  S.  313. 

(31)  Ex  parte  Virginia.  100  U.  S.  339,  367. 
^32)  Rawlins  v.  Georgia,  201  U.  S.  638. 


CHAPTER  VIII. 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW:  POWERS 
OF  REGULATION.— POLICE  POWER. 

Section  1.     General  Conceptions. 

§  144.  Fundamental  guarantees  apply  to  rights  as 
well  as  procedure.  In  Chapter  VII,  above,  we  have  dis 
cussed  the  Umitations  upon  j^rocedure  imposed  by  the  con- 
stitutional requirements  of  due  process  and  equality  of 
law.  But  these  provisions  include  much  more.  The  very 
substance  of  individual  rights  to  liberty  and  property 
may  not  be  arbitrarily  impaired,  no  matter  how  fair  the 
procedure.  For  instance,  suppose  a  state  should  pass  a 
law  providing  that  in  each  township  the  person  best  able 
to  bear  the  burden  should  pay  the  entire  expense  of  local 
government,  or  should  be  deprived  of  one-half  of  his 
property,  or  that  persons  having  more  than  $100,000  of 
property  should  be  forbidden  to  acquire  more.  The  fair- 
est possible  procedure  might  be  provided  to  ascertain  the 
persons  affected  by  these  laws,  and  to  administer  their 
provisions,  but  this  would  be  unavailing.  Our  present 
constitutions  prohibit  the  objects  sought  by  such  laws, 
regardless  of  methods  of  procedure. 

In  the  next  three  chapters  we  shall  consider  at  some 
length  the  scope  of  these  limitations  upon  the  principal 
governmental  powers  of  the  states  and  the  nation. 

131 


132  CONSTITUTIONAL  LAW 

§  145.  They  apply  to  all  departments  of  government. 
Regarding  the  history  and  present  meaning  of  the  phrase 
**due  process  of  law"  the  United  States  Supreme  Court 
has  said : 

*'The  equivalent  of  the  phrase  'due  process  of  law,'  ac- 
cording to  Lord  Coke,  is  found  in  the  words  'law  of  the 
land,'  in  the  Great  Charter,  in  connection  with  the  writ 
of  habeas  corpus,  the  trial  by  jury,  and  other  guarantees 
of  the  rights  of  the  subject  against  the  oppression  of  the 
crown.  In  the  series  of  amendments  to  the  Constitution 
of  the  United  States,  proposed  and  adopted  immediately 
after  the  organization  of  the  government,  which  were  dic- 
tated by  the  jealousy  of  the  states  as  further  limitations 
upon  the  power  of  the  Federal  government,  it  is  found 
in  the  Fifth,  in  connection  with  other  guarantees  of  per- 
sonal rights  of  the  same  character.  .  .  .  It  is  easy 
to  see  that  when  the  great  barons  of  England  wrung  from 
King  John,  at  the  point  of  the  sword,  the  concession  that 
neither  their  lives  nor  their  property  should  be  disposed 
of  by  the  crown,  except  as  provided  by  the  law  of  the  land, 
they  meant  by  'law  of  the  land'  the  ancient  and  customary 
laws  of  the  English  people,  or  laws  enacted  by  the  Parlia- 
ment of  which  those  barons  were  a  controlling  element. 
It  was  not  in  their  minds,  therefore,  to  protect  themselves 
against  the  enactment  of  laws  by  the  Parliament  of  Eng- 
land. But  when,  in  the  year  of  grace  1866,  there  is  placed 
in  the  Constitution  of  the  United  States  a  declaration  that 
*no  state  shall  deprive  any  person  of  life,  liberty,  or  prop- 
erty without  due  process  of  law,*  can  a  state  make  any- 
thing due  process  of  law  which,  by  its  own  legislation,  it 


FUNDAMENTAL  RIGHTS  133 

chooses  to  declare  such?  To  affirm  this  is  to  hold  that  the 
prohibition  to  the  states  is  of  no  avail,  or  has  no  applica- 
tion where  the  invasion  of  private  rights  is  effected  under 
the  forms  of  state  legislation.  It  seems  to  us  that  a  stat- 
ute which  declares  in  terms,  and  without  more,  that  the 
full  and  exclusive  title  of  a  described  piece  of  land,  which 
is  now  in  A,  shall  be  and  is  hereby  vested  in  B,  would,  if 
effectual,  deprive  A  of  his  property  without  due  process 
of  law,  within  the  meaning  of  the  constitutional  provi- 
sion (1). 

*'In  this  country  written  constitutions  were  deemed 
essential  to  protect  the  rights  and  liberties  of  the  people 
against  the  encroachments  of  power  delegated  to  their 
governments,  and  the  provisions  of  Magna  Charta  were 
incoi-porated  into  bills  of  rights.  They  were  limitations 
upon  all  the  powers  of  government,  legislative  as  well  as 
executive  and  judicial.  .  .  .  Applied  in  England  only 
as  guards  against  executive  usurpation  and  tyranny,  here 
they  have  become  bulwarks  also  against  arbitrary  legis- 
lation ;  but,  in  that  application,  as  it  would  be  incongruous 
to  measure  and  restrict  them  by  the  ancient  customary 
English  law,  they  iaiust  be  held  to  guarantee,  not  particu- 
lar forms  of  procedure,  l3ut  the  very  substance  of  individ- 
ual rights  of  life,  liberty,  and  property"  (2). 

The  requirement  of  equal  protection  of  the  laws  has 
been  similarly  interpreted  and  applied. 

§  146.  Meaning  of  liberty.  As  applied  to  the  regu- 
lative powers  of  government,  the  constitutional  prohibi- 


(1)     Davidson  v.  New  Orleans,  96  U.  S.  97,  101-2. 
{1  (2)     Hurtado  v.  California,  110  U.  S.  516,  531-32. 


134  CONSTITL'TIONAL  LAW 

tion  against  depriving  persons  of  liberty  without  due 
process  of  law  (3)  means  that  they  may  not  be  deprived 
arbitrarily  and  without  some  reasonable  ground  of  either 
their  personal  liberty,  or  of  their  freedom  to  make  con- 
tracts, to  engage  in  occupations,  or  to  acquire  and  use 
property. 

The  word  "liberty"  in  Magna  Charta  and  other  early 
English  political  documents  (whence  it  came  into  our  con- 
stitutions) doubtless  referred  only  to  liberty  of  the  per- 
son (4).  The  same  process  that  enlarged  the  application 
of  the  phrase  "due  process  of  law"  (see  §  145,  above) 
has  also  widened  the  meaning  of  "liberty."  Louisiana 
attempted  to  forbid  any  person  from  doing  any  act  within 
the  state  to  insure  property  in  the  state  in  any  marine  in- 
surance company  which  had  not  complied  with  Louisiana 
law.  The  Supreme  Court  held  the  statute  invalid  as  ap* 
plied  to  a  person  who  mailed  a  notice  in  the  state  to  an 
outside  company  to  effect  insurance  previously  contracted 
for  elsewhere.  The  prohibition  of  such  acts  was  held  to 
have  no  reasonable  relation  to  any  legitimate  public  pol- 
icy of  the  state.    The  court  said : 

"The  liberty  mentioned  in  that  amendment  means  not 
only  the  right  of  the  citizen  to  be  free  from  the  mere  phys- 
ical restraint  of  his  person,  as  by  incarceration,  but  the 
term  is  deemed  to  embrace  the  right  of  the  citizen  to  be 
free  in  the  enjoyment  of  all  his  faculties ;  to  be  free  to  use 
them  in  all  lawful  ways ;  to  live  and  work  where  he  will ; 


(3)  Const.,  Amend.  V  and  XIV. 

(4)  C.  E.  Shattuck  in  4  Harvard  Law  Review,  365. 


FUNDAMENTAL  RIGHTS  135 

to  earn  his  livelihood  by  any  lawful  calling;  to  pursue  any 
livelihood  or  avocation,  and  for  that  purpose  to  enter  into 
all  contracts  which  may  be  proper,  necessary,  and  essen- 
tial to  his  carrying  out  to  a  successful  conclusion  the  pur- 
poses above  mentioned"  (5). 

§  147.  Meaning  of  deprivation  of  property.  Depriva- 
tion of  property  may  take  place  in  a  variety  of  ways  be- 
sides sheer  confiscation.  The  state  may  place  such  restric- 
tions upon  the  possession,  use,  or  the  transfer  of  property 
as  to  amount  to  a  deprivation  of  some  or  all  of  its  essen- 
tial incidents.  Legislation  may  attempt  to  change  the 
character  of  an  owner's  title  to  property,  or  to  compel 
special  expenditures  on  account  of  the  ownership  or  con- 
trol of  certain  kinds  of  property,  or  to  enlarge  the  own- 
er's liability  for  damage  resulting  from  the  condition  or 
use  of  property,  or  to  limit  the  owner's  remedies  for  in- 
fringement of  property  rights.  If  such  and  similar  inter- 
ferences with  property  rights  are  merely  arbitrary,  and 
do  not  serve  any  reasonable  or  legitimate  public  purpose 
they  may  be  declared  unconstitutional.  Many  specific  il- 
lustrations of  this  appear  in  succeeding  subsections  of 
this  chapter.  The  rights  protected  by  the  guarantees  of 
liberty  and  of  property  blend  together  at  certain  points, 
as  for  instance  where  an  owner  is  forbidden  to  make  a 
certain  use  of  his  property.  This  may  be  regarded  as  in- 
vading his  liberty  of  action  or  as  limiting  his  property 
rights.  It  is  usually  not  important  to  distinguish  closely 
between  the  two,  and  courts  frequently  do  not  do  so. 


(5)     Allgeyer  v.  Louisiana,  165  U,  B.  578,  589. 


136  CONSTITUTIONAL  LAW 

§  148.  Meaning  of  equal  protection  of  the  laws.  Tlie 
Fourteeutb  Amendmeut  guarantees  the  et^ual  protection 
of  the  laws  to  all  persons  within  the  jurisdiction  of  a  state. 
Obviously  this  provision  does  not  mean  that  all  persons, 
property,  or  occupations  must  be  treated  alike  by  the 
state.  Insane  persons  may  be  treated  differently  from 
sane  ones,  bricks  differently  from  dynamite,  and  rail- 
roading differently  from  farming.  For  the  public  wel- 
fare, persons,  propertj',  and  occupations  must  be  classi- 
fied and  subjected  to  differing  and  appropriate  regula- 
tions. ''Regulations  for  these  purposes  may  press  with 
more  or  less  weight  upon  one  than  upon  another,  but  they 
are  designed  not  to  impose  unequal  or  unnecessary  re- 
strictions upon  any  one,  but  to  promote,  with  as  little 
individual  inconvenience  as  possible,  the  general  good. 
Though,  in  many  respects,  necessarily  special  in  their 
character,  they  do  not  furnish  just  ground  of  complaint 
if  they  operate  alike  upon  all  persons  and  property  under 
the  same  conditions  and  circumstances.  Class  legisla- 
tion, discriminating  against  some  and  favoring  others, 
is  prohibited ;  but  legislation  which,  in  carrying  out  a  pub- 
lic purpose,  is  limited  in  its  application,  if  within  the 
sphere  of  its  operation  it  affects  alike  all  persons  simi- 
larly situated,  is  not  within  the  amendment"  (6). 

Nor  is  it  objectionable  that  the  state  chooses  to  regulate 
the  evils  in  one  kind  of  business,  while  it  permits  the 
evils  of  other  kinds  of  business  to  go  unregulated.  A 
legislature  is  not  obliged  to  reform  everything  in  order 


(6)     Barbier  v.  Connolly,  113  U.  S.  27,  31-32. 


FUNDAMENTAL  RIGHTS  137 

constitutionally  to  reform  anything.  "Specific  regula- 
tions  for  one  kind  of  business,  which  may  be  necessary  for 
the  protection  of  the  public,  can  never  be  the  just  ground 
of  complaint  because  like  restrictions  are  not  imposed 
upon  other  business  of  a  different  kind.  The  discrimina- 
tions which  are  open  to  objection  are  those  where  persons 
engaged  in  the  same  business  are  subjected  to  different 
restrictions,  or  are  held  entitled  to  different  privileges 
under  the  same  conditions"  (7).  Thus,  a  California  stat- 
ute forbidding  the  sale  of  corporation  stock  on  margin, 
or  for  future  delivery,  was  upheld  although  similar  sales 
of  other  property  were  not  forbidden.  This  particular 
form  of  speculative  gambling  being  easy  and  prevalent,  as 
compared  with  other  forms,  furnished  a  proper  reason  for 
treating  it  differently  (8). 

On  the  other  hand,  an  Illinois  statute  was  held  invalid 
which  forbade  all  combinations  to  fix  prices  or  restrict 
competition  except  those  of  producers  and  raisers  regard- 
ing farm  products  or  live  stock.  The  excepted  classes 
were  so  numerous  and  important  that  no  good  reason 
appeared  why  they  alone  should  be  permitted  to  combine 
against  the  public  interest  (9).  All  classification  for 
purposes  of  regulation  ''must  always  be  based  upon  some 
difference  which  bears  a  reasonable  and  just  relation  to 
the  act  in  respect  to  which  the  classification  is  proposed, 
and  can  never  be  made  arbitrarily  and  without  such 
basis."    This  was  said  in  declaring  invalid  a  statute  re- 


(7)  Soon  Hing  v.  Crowley,  113  U.  S.  pp.  708-&. 

(8)  Otis  V.  Parker,  187  U.  S.  606. 

(9)  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  640. 


138  CONSTITUTIONAL  LAW 

quiring  railroad  companies  alone  to  pay  costs  when  de- 
feated in  litigation  (10). 

A  statute  may  be  valid  on  its  face  and  yet  the  adminis- 
tration of  it  may  be  so  arbitrary  as  to  be  unconstitutional. 
Thus,  the  requirement  that  laundries  in  wooden  buildings 
must  obtain  special  licenses  on  account  of  the  danger 
from  fire  is  a  valid  classification,  but  if  the  laundries  of 
white  men  are  uniformly  licensed  while  those  of  Chinese 
similarly  situated  are  not,  this  administration  of  the  ordi- 
nance is  invalid  (11). 

§  149.  Application  of  these  guaranties  to  corporations. 
The  constitutional  provisions  under  discussion  apply  to 
persons,  not  merely  to  citizens.  They  clearly  include  all 
natural  persons,  even  though  aliens,  and  have  been  held 
to  cover  corporations  also,  these  being  artificial  persons 
(12).  The  peculiar  nature  of  a  corporation,  however,  de- 
prives it  of  much  of  the  protection  against  arbitrary  and 
unequal  legislation  enjoyed  by  natural  persons. 

A  corporation  derives  all  its  powers  of  action  from  some 
law,  state  or  Federal.  If  it  is  incorporated  or  employed 
by  the  United  States,  or  if  its  business  is  solely  interstate 
or  foreign  commerce,  a  state  may  not  interfere  with  these 
activities.  (See  §  296,  below).  The  same  is  true  if  it  has 
an  irrepealable  charter  or  contract  or  license  to  do  busi- 
ness in  a  state.  (See  §  230,  below).  With  these  ex- 
ceptions, a  state  may  determine  absolutely  what  corpora- 
tions shall  or  shall  not  do  business  within  it,  and  what 


(10)  Gulf,  etc.,  Railroad  Go.  v.  Ellis,  165  U.  S.  150. 

(11)  Yick  Wo  V.  Hopkins,  118  U.  S.  356. 

(12)  Pembina  Co.  v.  Pennsylvania,  125  U.  S.  181. 


FUNDAMENTAL  RIGHTS  139 

powers  they  shall  exercise.  Permission  to  do  business  not 
made  part  of  a  contract,  can  be  withdrawn  at  any  time  by 
the  state;  and  from  these  principles  it  results  that  the 
liberty  clauses  of  our  constitutions  are  scarcely  applicable 
to  corporations  (13).  The  requirement  of  the  equal  pro- 
tection of  the  laws  applies  only  to  persons  '*  within  the 
jurisdiction."  A  corporation,  not  within  the  excepted 
classes  mentioned  above,  cannot  exist  within  the  jurisdic- 
tion of  a  state  without  its  permission,  because  the  artificial 
corporate  entity  has  no  existence  except  where  sustained 
by  law.  A  state  may  thus  arbitrarily  exclude  corpora- 
tions, or,  when  they  are  admitted,  it  may  arbitrarily  put 
them  out  again  unless  they  will  submit  to  new  con- 
ditions (14). 

Although  corporations  are  popularly  supposed  to  occupy 
positions  of  great  privilege  in  this  country,  they  are  really 
far  more  vulnerable  to  legislative  attack  than  are  indi- 
viduals. Their  essential  strength  is  economic  rather  than 
legal. 

§  150.  Definition  of  police  power.  The  various  powers 
of  government  overlap  in  their  exercise  to  such  an  extent 
that  a  rigorous  classification  of  them  is  scarcely  prac- 
ticable. A  few  of  them  are  sufficiently  distinct  from  the 
remainder  to  have  acquired  distinguishing  names,  like 
the  powers  of  war,  of  taxation,  and  of  eminent  domain. 
There  is  no  general  agreement  regarding  the  classifica- 
tion of  other  governmental  powers,  though  they  may  be 


(13)  Western  Turf  Association  v.  Greenberg,  204  TJ.  S.  359. 

(14)  Philadelpliia  Fire  Association  v.  New  York,  119  TJ.  S.  110; 
[National  Council  v.  State  Council,  203  U.  S.  151.  But  see  W.  U.  Tel. 
I  Co.  V,  Kansas,  216  U.  S.  1 ;  So.  Ry.  Co.  v.  Greene,  216  U.  S.  400. 


140  CONSTITUTIONAL  LAW 

divided  roughly  into  such  groups  as  those  regulating  pro- 
cedure and  the  fonus  of  remedies,  those  defining  private 
rights  and  duties  between  individuals,  and  those  regu- 
lating conduct  in  the  interest  of  the  public  welfare.  This 
latter  group  is  perhaps  today  more  frequently  called  the 
police  power,  though  the  name  is  a  vague  one  constantly 
applied  by  judges  and  writers  to  powers  included  in  the 
other  groups  mentioned  (15).  The  powers  discussed  in 
this  chapter  are  chiefly  those  falling  in  the  third  group, 
regulation  for  the  public  welfare,  with  a  few  that  perhaps 
belong  in  the  second  group  as  mainly  concerning  rights 
between  individuals. 

§  151.  Classification  of  subjects  of  police  power.  The 
subjects  of  the  police  power  in  its  narrower  sense  may  be 
divided  roughly  into  three  classes:  1.  Legislation  de- 
signed to  promote  the  social  welfare  of  the  public.  2. 
Legislation  designed  to  promote  the  economic  interests  of 
the  public.  3.  Administrative  regulations  the  better  to 
secure  these  ends.  The  principal  topics  in  each  of  these 
classes  will  be  briefly  dealt  with. 

Section  2.    Regulation  op  Social  Inteeests  (16). 

§  152.  Public  health.  Very  great  latitude  is  allowed 
government  in  its  bona  fide  efforts  to  protect  the  health 
of  persons  or  animals.    Direct  sanitary  legislation,  l^ar- 


(15)  See  Freund,  Police  Power,  §§  1-3. 

(16)  The  outline  of  this  and  succeeding  sections  of  this  chapter 
follows  the  analysis  of  the  subject  made  by  Professor  Ernst  Freund, 
of  the  University  of  Chicago  Law  School,  In  his  excellent  work,  The 
Police  Power. 


FUNDAMENTAL  RIGHTS  141 

ing  any  reasonable  relation  to  the  matter,  is  of  course 
valid,  as  are  also  many  restrictions  upon  occupations  and 
the  use  of  property  that  indirectly  promote  these  objects. 
Thus,  a  state  may  require  all  slaughtering  of  cattle  in  a 
large  city  to  be  conducted  under  the  control  of  a  single 
corporation,  which  is  given  a  monopoly  of  the  business, 
in  order  to  secure  more  effective  sanitary  control  of  the 
business ;  the  manufacture  and  sale  of  oleomargarine  may 
ibe  wholly  forbidden  if  much  of  that  sold  is  unhealthful ; 
persons  may  be  forbidden  to  labor  more  than  eight  hours 
a  day  in  underground  mines;  and  women  may  be  re- 
stricted to  ten  hours  a  day  of  work  in  public  laun- 
dries (17). 

Where  the  court  thinks  that  the  alleged  health  law  bears 
no  reasonable  relation  to  the  avowed  purposes  of  its 
creation,  it  is  invalid.  A  recent  noteworthy  instance  of 
this  was  the  annulling  of  a  New  York  statute  forbidding 
more  than  ten  hours  a  day  of  labor  in  bakeries,  the  court 
not  being  persuaded  that  this  occupation  was  sufficiently 
unhealthful  to  make  such  a  regulation  reasonable  (18). 
Obviously  the  determination  of  such  questions  depends 
more  upon  a  knowledge  of  the  pertinent  facts  than  upon 
legal  learning,  and  reputable  courts  may  readily  disagree 
upon  close  questions  (19). 

§  153.     Public  morals.      The  immense  importance  of 


(17)  Slaughter  House  Cases,  16  Wall.  36;  Powell  v.  Pennsylvania, 
127  U.  S.  678;  Holden  v.  Hardy,  169  U.  S.  366;  Muller  y.  Oregon.  208 
U.  S.  412. 

(18)  Lochner  v.  New  York,  198  U.  S.  45. 

(19)  Compare  People  v.  Marx,  99  N.  Y.  377,  with  Powell  v.  Penn- 
sylvania, above. 

Vol.  xa—i  1 


142  CONSTITUTIONAL  luAW 

this  subject,  justifies  a  correspondingly  wide  legislative 
control.  The  principal  subjects  of  regulation  have  been 
gambling  in  its  varied  forms,  intoxicating  liquors,  and 
sexual  vice.  Betting  may  be  forbidden,  even  upon  games 
wholly  of  skill,  lotteries  and  the  common  forms  of  gam- 
bling are  almost  everywhere  illegal,  and  even  business 
transactions  of  a  more  highly  speculative  character  may 
be  forbidden.  Thus,  option  contracts  for  the  future  de- 
livery of  grain  may  be  made  illegal,  as  may  sales  of  stock 
upon  margin  (20). 

Attempts  to  control  the  liquor  traffic  in  this  country 
have  produced  a  vast  amount  of  legislation  and  litiga- 
tion. As  a  result  it  has  been  definitely  settled  that  the 
admitted  evils  of  the  traffic  justify  absolute  prohibition 
of  the  manufacture,  keeping,  or  sale  of  intoxicating  liquor, 
and  that  this  prohibition  may  constitutionally  apply  to 
places  of  manufacture  or  to  liquor  legally  owned  in  a 
state  before  the  prohibitory  law  took  effect  (21).  This  is 
one  of  the  most  notable  instances  of  legislative  power 
to  render  property  virtually  useless  and  almost  valueless 
in  the  public  interest,  without  compensation.  Of  course 
the  right  to  forbid  includes  the  lesser  right  to  license 
upon  stringent  conditions,  and  at  least  one  state  (South 
Carolina)  has  legally  made  the  selling  of  liquor  a  govern- 
ment monopoly  (22). 

Measures  designed  to  prevent  or  limit  sexual  immor- 
ality are  seldom  held  invalid.  It  has  even  been  suggested 


(20)  Booth  V.  Illinois,  184  U.  S.  425;  Otis  v.  Parker,  187  U.  S.  606. 

(21)  Mugler  v.  Kansas,  123  U.  S.  623. 

(22)  Vance  v.  Vandercook  Co.,  170  U.  S.  438. 


FUNDAMENTAL  RIGHTS  143 

that  a  state  may  restrict  the  location  of  houses  of  ill 
fame  to  certain  districts,  without  infringing  the  constitu- 
tional rights  of  property  owners  in  such  districts  (23). 

§  154.  Public  safety.  The  rapidly  increasing  bulk  of 
state  and  municipal  legislation  for  the  public  safety  in- 
dicates its  importance.  Dangerous  property  and  busi- 
nesses may  be  required  to  adopt  appropriate  measures  for 
the  protection  of  employees,  patrons,  or  the  public  gen- 
erally ;  and  precautionary  steps  may  be  required  in  order 
that  property  or  occupations  shall  not  become  dangerous. 
Regulation  of  factories,  mines,  railroads,  navigation,  con- 
struction of  buildings,  and  many  other  matters  are  com- 
mon instances.  The  principal  questions  here  are  what 
parties  may  be  made  to  bear  the  expense  of  measures  for 
the  public  safety.    This  is  discussed  in  §  165,  following. 

§  155.  Public  order  and  comfort.  Esthetics.  The 
state  may  regulate  the  use  of  streets  and  other  iDublic 
places,  may  secure  quiet  at  night  and  on  Sundays,  and 
may  forbid  acts  offensive  either  to  the  senses  or  the  feel- 
ings of  the  public.  The  separation  of  the  races  in  public 
conveyances,  schools,  or  elsewhere  where  such  separa- 
tion may  promote  the  public  order  is  also  upheld  (24). 

As  regards  restrictions  upon  the  use  of  property  for 
purely  esthetic  purposes,  as  limiting  the  height  of  build- 
ings, or  forbidding  unsightly  bill  boards,  these  have  so 


(23)  L'Hote  v.  New  Orleans,  177  U.  S.  587. 

(24)  Lehew  v.  Brummell,  103   Mo.   546;    Plessy  v.  Ferguson,   163 
U.  S.  537. 


144  CONSTITUTIONAL  LAW 

far  been  generally  denied  validity  in  this  country,  unless 
oompensatioD  is  made  to  the  owner  (25). 

§  156.  Licensing  occupations.  Not  only  may  licenses 
be  required  for  occupations  that  may  be  forbidden  alto- 
gether, like  selling  liquor,  but  ^'if  the  occupation  or  calling 
be  of  such  a  character  as  to  require  a  special  course  of 
study  or  training  or  experience  to  qualify  one  to  pursue 
such  occupation  or  calling  with  safety  to  the  public  inter- 
ests, no  one  questions  the  power  of  the  legislature  to  im- 
pose such  restraints  and  prescribe  such  requirements  as 
it  may  deem  proper  for  the  protection  of  the  public 
against  the  evils  resulting  from  incapacity  and  ignor- 
ance" (26).  The  requirement  of  appropriate  qualifica- 
tions, to  be  evidenced  by  licenses,  has  been  upheld  in 
respect  to  a  great  variety  of  occupations  including  many 
of  those  involving  professional  skill,  fiduciary  relation, 
or  a  likelihood  of  fraud  or  public  disorder  occurring  in 
connection  with  the  business.  But  the  qualifications  re- 
quired must  be  appropriate  to  the  business.  Requiring 
a  barber  to  be  a  citizen  is  invalid  (27).  The  examination 
and  licensing  cannot  be  required  in  occupations  where  this 
is  not  reasonably  necessary  to  the  public  protection,  such 
as  horseshoeing,  and  undertaking  (28). 

§  157.  Domestic  relations.  Dependent,  delinquent 
and  defective  persons.    The  control  of  the  state  over  mar- 


(25)  Welch  V.   Swasey,  214  U.  S.  91;    Commonwealth  v.  Boston 
Advertising  Co.,  188  Mass.  348. 

(26)  Singer  v.  Maryland,  72  Md.  464. 

(27)  Templar  v.  State  Board,  131  Mich.  254. 

(28)  Besette  v.  People,  193  111.  334;  People  v.  Ringe,  125  App.  DlT. 
(N.  Y.),  592. 


FUNDAMENTAL  RIGHTS  145 

riage  and  divorce  is  discussed  in  the  article  on  Domestic 
Eelations  in  Volume  II  of  this  work.  This  power  to 
prescribe  qualifications  and  formalities  for  marriage  is 
doubtless  much  wider  than  any  previous  exercise  of  it  in 
this  country ;  and  the  power  to  prescribe  the  conditions  of 
divorce  is  practically  absolute.  In  the  absence  of  express 
constitutional  restrictions  a  state  legislature  may  even 
grant  divorces  in  individual  cases  (29).  Provisions 
against  the  intermarriage  of  different  races  exist  in  many 
states  and  have  been  uniformly  sustained  (30). 

Minor  children,  insane  persons,  and  those  with  abnor- 
mal tendencies  markedly  injurious  to  the  social  order,  like 
habitual  criminals,  vagrants,  and  truants  may  be  cared 
for  by  the  state  in  an  appropriate  manner.  The  educa- 
tion of  children  may  be  made  compulsory,  and  the  state 
may  care  for  them  if  their  parents  are  unable  or  unwilling 
to  do  so.  Insane  and  otherwise  defective  persons  may  be 
treated  in  state  institutions  such  as  asylums,  hospitals, 
reformatories,  etc.,  wherever  public  care  seems  likely  to 
secure  better  results  than  private  care. 

Section  3.    Economic  Intekests. 

§  158.  In  general.  It  is  noticeable  that  the  courts  have 
allowed  the  legislature  less  latitude  in  regulations  affect- 
ing economic,  than  in  those  dealing  with  social,  inter- 
ests. This  has  been  particularly  marked  in  the  case  of 
legislation  designed  to  restrict  competition.  Unfair  meth- 
ods of  competition  may  in  many  instances  be  successfully 


(29)     Maynard  v.  Hill,  125  U.  S.  390. 

(-30)     Plessy  v.  Ferguson,  163  U.  S.  537,  545. 


146  CONSTITUTIOiNAL  LAW 

forbidden,  but,  eliminating  these,  the  "free  struggle  for 
life"  has  been  carefully  protected.  It  may  be  that  this 
century  will  witness  such  a  change  in  the  essential  con- 
ditions of  this  struggle  that  much  of  the  older  economio 
reasoning  will  be  abandoned  by  the  courts. 

§  159.  Protection  against  fraud.  Fraud,  as  a  means 
of  competition,  it  is  everywhere  agreed  may  be  forbidden. 
Laws  against  short  weights,  imitations,  and  even  harm- 
less adulterations,  inspection  laws,  regulations  to  secure 
the  fidelity  of  fiduciaries  and  the  regulation  of  other  kinds 
of  business  where  fraud  is  likely  to  appear  are  common 
instances  of  this.  Under  the  guise  of  such  legislation, 
however,  it  is  not  permissible  unreasonably  to  restrict 
competition.  For  instance,  if  the  prohibition  of  oleo- 
margarine cannot  reasonably  be  attributed  to  a  purpose  to 
protect  health  and  prevent  fraud,  it  cannot  be  sustained 
upon  the  ground  of  protecting  the  butter  interests  of  a 
state  from  competition.  Both  the  oleomargarine  manu- 
facturers and  the  public  are  entitled  to  the  benefit  of  the 
cheaper  article  (31).  For  similar  reasons  laws  against 
merchants  giving  premiums  or  trading  stamps  with  their 
goods  are  invalid,  as  being  directed  against  a  method  of 
competition,  perhaps  not  beneficial  to  the  public,  but  at 
least  not  improper  (32). 

§  160.  Protection  against  oppression.  Where  the 
economic  superiority  of  certain  classes  of  persons  in 
their  dealings  with  other  classes  or  with  the  public  is  so 
marked  that  oppressive  terms  are  likely  to  be  frequently 


(31)  People  V.  Marx,  99  N.  Y.  377. 

(32)  People  V.  Gillson,  109  N.  Y.  389. 


FUNDAMENTAL  RIGHTS  147 

exacted,  the  weaker  party  may  be  protected  by  legisla- 
tion which  either  regulates  particular  contracts  or 
methods  of  organization,  that  give  undue  economic  ad- 
vantages. Debtors  and  laborers  have  been  the  two  classes 
commonly  protected  by  the  regulation  of  their  contracts. 
Excessive  interest  and  annoying  practices  in  the  collection 
of  debts  are  forbidden  in  most  states;  and  bankruptcy 
acts  may  even  discharge  honest  or  unfortunate  debtors 
altogether.  The  latter  subject  is  dealt  with  at  length  in 
the  article  on  Bankruptcy  in  Volume  X  of  this  work. 

Legislation  regulating  the  more  important  elements  of 
labor  contracts,  to  prevent  economic  oppression,  have  thus 
far  generally  been  held  invalid.  The  hours  of  work  cannot 
be  restricted,  except  to  protect  health  or  morals,  nor  can 
employees  be  protected  from  arbitrary  discharge,  for 
instance,  because  they  are  members  of  a  union  (33).  The 
regulation  of  the  rate  of  wages  would  doubtless  fare  no 
better.  Various  incidents  of  the  contract  of  employment 
may  be  regulated,  such  as  requiring  all  wages  earned  to 
be  paid  when  a  servant  is  discharged,  and  forbidding  pay- 
ment in  store  orders  instead  of  cash  (34).  Some  state 
courts  deny  even  the  validity  of  such  regulations.  The 
blacklisting  of  employees  by  combinations  of  employers 
may  be  forbidden. 

Statutes  forbidding  combinations  in  restraint  of  trade 
are  among  the  commonest  illustrations  of  laws  restricting 
methods  of  organization  that  lead  to  economic  oppression 


(33)  Lochner  v.  New  York,  laS  U.  S.  45;  Adair  v.  United  States, 
208  U.  S.  161. 

(34)  Knoxville  Iron  Co.  v,  Harbison,  183  U.  S.  13. 


148  CONSTITUTIONAL  LAW 

of  the  public.  The  power  of  the  state  to  prevent  combined 
action  for  economic  purposes  is  much  greater  than  its 
power  against  individual  action  (35). 

§  161.  Business  affected  with  a  public  interest.  Vari- 
ous businesses  that  render  important  services  to  the  com- 
munity may  be  regulated  in  great  detail  by  the  legislature. 
These  businesses  are  often  said  to  be  clothed  or  affected 
with  a  public  interest,  and  in  recent  years  the  more  im- 
portant ones  have  generally  been  collectively  called  "pub- 
lic utilities,"  or  ''public  service  businesses.'*  They  in- 
clude the  furnishing  of  transportation,  telegraph  and 
telephone  service,  gas,  water,  and  electricity,  and  other 
important  public  services.  It  is  difficult  to  state  any  single 
test  by  which  to  distinguish  public  service  businesses  from 
others.  Probably  there  are  several  different  principles 
of  inclusion.  Businesses  discharging  governmental  func- 
tions, like  transportation,  may  be  regulated;  businesses 
requiring  public  franchises,  as  for  the  use  of  the  streets, 
may  be  regulated ;  and  perhaps  any  business  of  vital  im- 
portance which  either  legally  or  economically  has  become 
a  virtual  monopoly  may  be  regulated.  The  general  char- 
acteristics and  obligations  of  such  occupations  are  fully 
treated  in  the  article  on  Public  Service  Corporations  in 
Volume  VIII  of  this  work. 

Regulation  of  these  businesses  may  prescribe  maximum 
charges  and  equality  of  service  and  may  specify  the  de- 
tails of  the  service  to  be  supplied.  The  principal  limita- 
tion upon  the  regulation  of  charges  is  that  they  must 


(35)     Aikens  v.  Wisconsin,  195  U.  S.  194. 


FUNDAMENTAL  RIGHTS  149 

permit  the  earaing  of  a  fair  return  upon  the  business.    As 
to  railroad  rates  the  Supreme  Court  has  said : 

**We  hold,  however,  that  the  basis  of  all  calculations 
as  to  the  reasonableness  of  rates  to  be  charged  by  a  cor- 
poration maintaining  a  highway  under  legislative  sanc- 
tion must  be  the  fair  value  of  the  property  being  used 
by  it  for  the  convenience  of  the  public.  And  in  order  to 
ascertain  that  value,  the  original  cost  of  construction,  the 
amount  expended  in  permanent  improvements,  the  amount 
and  market  value  of  its  bonds  and  stock,  the  present  as 
compared  with  the  original  cost  of  construction,  the  prob- 
able earning  capacity  of  the  property  under  particular 
rates  prescribed  by  the  statute,  and  the  sum  required  to 
meet  operating  expenses,  are  all  matters  for  considera- 
tion, and  are  to  be  given  such  weight  as  may  be  just  and 
right  in  each  case.  We  do  not  say  that  there  may  not  be 
other  matters  to  be  regarded  in  estimating  the  value  of  the 
property"  (36). 

Under  our  dual  system  of  government,  internal  state 
rates  may  be  regulated  by  the  state  alone,  and  interstate 
rates  by  the  United  States  alone;  and  in  determining 
what  is  a  fair  return  upon  the  value  of  the  property,  the 
income  from  internal  transportation  must  alone  be  con- 
sidered in  fixing  the  internal  rates,  and  vice  versa.  See 
§  293,  below.  Governmental  regulation  of  public  service 
business  is  fully  discussed  in  the  article  upon  Public 
Service  Corporations  in  Volume  VIII  of  this  work. 

Banks  and  insurance  companies  are  usually  the  subject 


'a&k     Smyth  V.  Amee,  169  U.  S.  466,  546-7. 


150  CONSTITUTIONAL  LAW 

of  rather  stringent  regulations  in  order  to  protect  their 
patrons  from  loss  due  to  unwise  or  dishonest  management. 

§  162.  Regulation  of  corporations.  As  has  been  ex- 
]ilained  elsewhere  (see  §  149,  above),  corporations  owe 
their  existence  and  powers  entirely  to  legislation  and  they 
are  therefore  subject  to  much  more  stringent  and  arbi- 
trary regulation  than  are  individuals.  As  a  condition  of 
the  grant  of  a  corporate  charter  the  corporation  may  be 
required  to  consent  in  advance  to  exactions  that  could  not 
be  required  of  it  under  ordinary  legislative  powers.  Thus, 
it  may  validly  agree  to  carry  passengers  at  rates  too  low 
to  make  a  fair  profit  (37).  See  also  §§  291,  296,  below. 
The  Federal  Constitution  may  forbid  the  enforceability 
of  some  terms  even  in  a  franchise  grant,  as  for  instance 
an  agreement  not  to  remove  suits  into  the  Federal  courts ; 
but  though  the  state  may  not  specifically  enforce  such  an 
agreement  it  may  punish  the  corporation  by  expelling  it 
from  the  state  for  breach  of  it  (38). 

§  163.  Regulation  of  ownership  of  property.  The  state 
may  regulate  the  future  creation  of  interests  in  property, 
as  by  forbidding  perpetuities  or  long  time  leases  of  agri- 
cultural lands.  The  use  and  appropriation  of  certain 
peculiar  kinds  of  property  may  also  be  regulated,  such 
as  running  water,  game,  fish,  natural  gas,  and  oil.  The 
wanton  waste  of  these  substances  may  be  forbidden  in  the 
interest  of  the  public,  though  otherwise  private  rights  in 
them  may  be  left  untouched.     The  public  control  over 


(37)  Grand  Rapids,  etc.   R.  R.  Co.  v.  Osborne,  193  U.  S.  17. 

(38)  Home  Ins.  Co.  v.  Morse,  20  Wall.  445;   Security  Ins.  Co.  V. 
Prewitt,  202  U.  S.  246. 


FUNDAMENTAL  RIGH13  151 

game,  fish,  and  navigable  waters  is  very  extensive,  and 
their  taking  for  private  purposes  may  be  forbidden,  or  al- 
lowed subject  to  qualifications  (39).  The  prohibition  of 
the  wasteful  destruction  of  natural  gas  or  forest  trees  by 
private  owners  has  been  upheld  (40). 

§  164.  Compelling  joint  action  to  improve  property. 
Where  property  is  so  situated  that  it  cannot  be  most 
beneficially  enjoyed  by  its  owners  acting  separately,  the 
legislature  may  compel  some  of  the  owners,  upon  receiv- 
ing compensation,  to  submit  to  measures  enabling  the 
others  to  obtain  the  most  beneficial  use  of  the  joint  prop- 
erty, provided  that  this  result  is  of  considerable  public 
benefit.  Thus,  where  a  large  water  power  can  be  devel- 
oped from  a  stream  by  damming  it  and  flooding  the  upper 
riparian  land,  the  legislature  may  authorize  such  a  dam 
and  compel  the  upper  owner  to  submit  to  flooding  upon 
being  paid  therefor  by  the  owner  of  the  dam  (41).  Simi- 
larly, when  land  is  held  by  several  tenants  in  common  or 
joint  tenants,  the  legislature  may  authorize  a  compulsory 
partition  and  sale  in  order  to  secure  the  more  beneficial 
use  of  the  property. 

Much  the  same  principle  is  involved  where  the  prop- 
erty of  several  owners  is  so  situated  that  all  must  concur 
to  obtain  some  important  public  improvement  such  as  a 
land  irrigation  or  drainage  system.    All  of  the  owners 


(39)  Geer  v.   Connecticut,  161  U.   S.   519;   Hudson  Water  Co.  y. 
McCarter,  209  U.  S.  349. 

(40)  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190;  Opinion  of  Justices, 
103  Me.  506. 

(41)  Head  v.  Amoskeag  Co.,  113  U.  S.  9. 


152  CONSTITUTIONAL  LAW 

whose  land  is  benefited  may  be  required  to  contribute  to 
a  common  system  (42).  A  compulsory  sharing  of  the  ex- 
pense of  party  walls  is  in  some  states  treated  similarly. 

§  165.  Special  liabilities  due  to  nature  of  business.  If 
the  nature  of  the  business  requires  special  supervision, 
or  exposes  other  persons  and  property  to  special  hazard, 
even  when  carefully  conducted,  the  cost  of  such  super- 
vision and  the  burden  of  such  hazard  may  be  placed 
wholly  upon  the  business  occasioning  them.  Thus,  the 
railroads  of  a  state  may  be  made  to  pay  the  expense  of  a 
railroad  commission;  coal  mines  must  pay  for  mine  in- 
spectors; and  so  on  (43).  Railroads  may  be  made  abso- 
lutely liable  for  fire  from  their  engines,  or  for  the  injuring 
of  passengers,  even  though  all  proper  precautions  are 
used  to  prevent  these  accidents ;  and  a  liquor  seller  may  be 
made  liable  for  damage  done  by  intoxicated  persons  to 
whom  he  has  sold  liquor.  The  businesses  themselves  are 
hazardous  and  may  be  made  to  bear  the  expense  of  i,xieir 
hazards  (44).  Similarly,  a  business  may  be  made  to  bear 
the  expense  of  guarding  against  injuries  likely  to  occur 
in  its  conduct;  for  instance,  railroads  must  pay  for  fen- 
cing their  tracks,  for  the  installation  of  safety  devices, 
and  for  track  elevation  in  populous  districts  (45). 

§  166.  Special  liabilities  due  to  natural  condition  of 
property.  At  common  law  a  landowner  was  not  liable 
for  a  nuisance  occasioned  on  his  premises  by  the  ordinary 


(42)  Wurts  V.  Hoagland,  114  U.  S.  606. 

(43)  Railroad  Co.  v.  Gibbes,  142  U.  S.  386. 

(44)  St.  Louis,  etc.,  Ry.  v.  Mathews,  165  U.  S.  1;  Chicago,  R.  I  &  P. 
Ry.  V.  Zernecke,  183  U.  S.  582;  Howes  v.  Maxwell,  157  Mass.  333. 

(45)  New  York,  etc.,  Ry.  v.  Bristol,  151  U.  S.  656. 


FUNDAMENTAL  RIGHTS  153 

operation  of  natural  causes,  such  as  stagnant  water  in  a 
natural  swamp,  or  the  springing  up  of  noxious  weeds 
injurious  to  the  crops  of  his  neighbors  (46).  But  by 
statute  he  may  be  required  to  remedy  these  defects  at  his 
own  expense,  unless  the  trouble  and  expense  of  doing  so  is 
unreasonably  great.  Thus  he  may  be  required  to  fill  up  a 
city  lot  to  a  grade  fixed  so  as  to  prevent  the  accumulation 
of  stagnant  water  (47),  or  to  cut  noxious  weeds,  or  kill 
diseased  animals  (48) ;  but  he  cannot  be  required  to  free 
his  farm  land  from  ground  squirrels  and  similar  refrac- 
tory vermin,  where  the  expense  and  burden  is  excessive 
as  compared  with  the  public  benefit  (48).  Compulsory 
public  improvements  on  a  large  scale,  requiring  the  united 
efforts  of  the  landowners  of  a  district,  are  discussed  in 
§  164,  above. 

§  167.  RetroS/Ctive  laws.  Retroactive  laws  that  affect 
prejudicially  persons  charged  with  crime,  or  which  impair 
the  obligations  of  contracts  are  dealt  with  elsewhere  in 
this  article  as  ex  post  facto  laws  and  laws  impairing  the 
obligations  of  contracts.  (See  Chapters  VI  and  XI.) 
Other  retroactive  laws,  however,  may  be  passed  by  the 
legislature  which  will  be  invalid  if  they  amount  to  a  ta- 
king of  property  without  due  process  of  law.  A  statute 
enacting  merely  that  land  now  owned  by  A  should  become 
the  property  of  B  would  of  course  be  invalid.  But  sup- 
pose A  purports  to  convey  land  to  B  by  a  deed  which  is 
invalid  for  some  formal  defect,  and  the  legislature  by 


(46)  Roberts  v.  Harrison,  101  Ga.  773;  Giles  v.  Walker,  24  Q.  B.  D. 
656. 

(47)  Nickerson  v.  Boston,  131  Mass.  306. 

(48)  Ex  parte  Hodges,  87  Cal.  162. 


154  CONSTITUTIONAL  LAW 

statute  validates  the  deed.  This  also  takes  the  title  from 
A  and  puts  it  in  B,  but  it  is  *'due  process"  because  it  car- 
ries out  the  intention  of  the  parties  so  as  to  produce  a 
just  result.  The  general  rule  for  such  cases  has  been  thus 
stated  in  a  leading  decision:  ''When  a  statute  is  ex- 
pressly retroactive,  and  the  object  and  effect  of  it  is  to 
correct  an  innocent  mistake,  remedy  a  mischief,  execute 
the  intention  of  the  parties,  and  promote  justice,  then, 
both  as  a  matter  of  right  and  of  public  policy  affecting 
the  peace  and  welfare  of  the  community,  the  law  should  be 
sustained"  (49). 

This  principle  is  frequently  invoked  to  sustain  curative 
laws  validating  not  only  acts  between  private  parties,  but 
those  of  public  officials  and  of  municipal  corporations 
(50).  Of  course  no  act  can  be  thus  validated  which  could 
not  have  been  originally  authorized.  The  legislative 
validation  of  a  void  mortgage  is  binding  not  only  between 
the  parties,  but  as  against  attaching  creditors  of  the 
mortgagor,  who  knew  of  the  existence  of  the  void  mort- 
gage (51).  Doubtless  such  retroactive  validation  would 
not  be  good  against  third  parties  who  were  purchasers 
for  value  without  notice. 

When  a  right  of  action  has  been  barred  by  the  statute 
of  limitations  it  is  generally  held  that  it  cannot  he  re- 
vived against  the  debtor  by  a  retroactive  statute;  nor, 
when  it  is  not  a  matter  of  curing  defective  proceedings, 


(49)  Mechanics'  Savings  Bank  v.  Allen,  28  Conn.  97. 

(50)  Mitchell  v.  Clark,  110  U.  S.  633;  New  Orleans  v.  Clark,  95 
U.  S.  644. 

(51)  McFaddin  v.  Evans-Snider-Buel  Co.,  lS.o  U.  S..  505.     But  see 
Steger  v.  Trav.  Men  Bldg.  Assn.,  208  111.  236,  contra. 


FUNDAMENTAL  RIGHTS  155 

can  a  cause  of  action  or  a  defense  to  an  action  be  abro- 
gated by  a  retroactive  statute,  except  when  the  action  or 
defense  is  based  upon  some  purely  arbitrary  rule  of  law 
(52).  There  is  much  difference  of  opinion  regarding  the 
validity  of  ''betterment  laws,"  which  permit  one  who  in 
good  faith  has  spent  money  upon  property  which  he  thinka 
he  owns  to  recover  the  value  of  his  improvements  when 
ejected  by  the  real  owner.  In  law  the  improvements  be- 
come the  property  of  the  owner  of  the  land,  and  opinions 
differ  about  the  justice  of  making  him  pay  for  what  he 
has  not  requested  to  be  done  (53).  Eetroactive  laws 
validating  marriages  and  legitimating  children  have  been 
upheld  (54). 

Great  latitude  is  given  to  the  state  in  making  retroactive 
changes  in  the  remedies  for  wrongs.  The  forms  and  inci- 
dents of  actions,  rules  of  evidence,  and  methods  of  pro- 
cedure before  and  after  judgment  may  all  be  changed 
after  a  cause  of  action  has  arisen,  provided  that  such 
alterations  are  not  mere  colorable  devices  for  unjustly 
and  arbitrarily  depriving  persons  of  their  rights. 

Section  4.    Administrative  Regulations. 

§  168.  In  general.  Many  regulations  incidental  to 
those  directly  concerning  the  public  welfare  are  enacted 
in  order  to  secure  uniformity,  certainty,  and  administra- 
tive efficiency  in  enforcing  the  law.  Of  this  character  are 
most  laws  fixing  standards,  laying  down  prima  facie  rules 


(52)     Bd.  of  Ed.  v.   Blodgett,  155  111.  441;  Plummer  v.  Northern 
I      Pacific  Ry.,  152  Fed.  206. 
j  (53)     See  14  Harvard  Law  Rev.  385. 

j  (54)     Goshen  v.  Stonington,  4  Conu.  209. 


156  CONSTITlTlONAL  LAW 

of  evidence,  and  forbidding  certain  acts  or  conduct  re- 
gardless of  their  effect  or  tendency  in  particular  cases. 

§  169.  Illustrations.  Thus,  all  women  may  be  forbid- 
den to  work  in  factories  more  than  ten  hours  a  day,  even 
though  a  considerable  number  of  particular  women  may 
be  able  to  work  more  than  this  length  of  time  without  in- 
jurj'-  (55) ;  the  sale  of  all  game  of  a  certain  kind  may  be 
forbidden  during  the  closed  season  in  a  state,  even  though 
some  of  the  game  offered  for  sale  may  have  been  lawfully 
killed  elsewhere  (56) ;  the  sale  of  all  oleomargarine  arti- 
ficially colored  to  resemble  butter  may  be  forbidden,  even 
though  no  effort  be  made  to  sell  it  as  butter  (57) ;  and  non- 
producing  sellers  of  milk  may  be  made  absolutely  liable 
for  selling  milk  containing  less  than  a  certain  percentage 
of  milk  solids,  while  a  dairy  owner  may  escape  liability 
by  proving  that  his  cows  actually  gave  milk  with  a  smaller 
percentage  of  solids  (58). 

It  is  evident  that  all  of  these  provisions,  though  not 
necessary  in  particular  cases,  do  in  general  substantially 
aid  the  enforcement  of  the  law  where  it  is  needed.  It 
would  he  difficult  to  determine  the  strength  or  endurance 
of  any  particular  woman ;  or  to  prove  that  game  offered 
for  sale  was  killed  within  the  state;  and  if  the  sale  of 
butter-colored  oleomargarine  is  permitted  at  all,  some 
dealers  will  sell  it  for  butter.    In  the  milk  case,  the  dairy- 


(55)  Muller  v.  Oregon,  208  U.  S.  412. 

(56)  Silz  V.  Hesterberg,  211  U.  S.  31. 

(57)  Plumley  v.  Massachusetts,  155  U.  S.  461. 

(58)  Et.  John  v.  New  York,  201  U.  S.  633. 


FUNDAMENTAL  RIGHTS  157 

man's  cows  may  be  tested,  while  it  is  much  more  difficult 
to  trace  the  source  of  milk  sold  by  non-producers. 

§  170.  Prima  facie  rules  of  evidence.  Of  a  similar 
character  are  many  so-called  prima  facie  rules  of  evi- 
dence, which  make  the  proof  of  some  fact,  if  unexplained, 
a  sufficient  ground  for  conviction  of  an  offense  with  which 
the  proven  fact  is  ordinarily  closely  connected.  Thus,  a 
statute  may  make  the  possession  of  policy  slips  prima 
facie  evidence  of  the  illegal  paying  of  policy  (59) ;  or  the 
drinking  of  liquor  in  a  shop  prima  facie  evidence  that  it 
was  sold  there  (60).  The  fact  upon  which  the  presumption 
is  to  rest  must  have  some  fair  relation  to,  or  natural  con- 
nection with  the  act  which  is  made  criminal ;  and  in  any 
case  of  this  kind  the  defendant  may  rebut  the  presump- 
tion by  explaining  the  fact  that  is  made  prima  facie  evi- 
dence, and  thus  showing  his  innocence. 


(59)     Adams  v.  New  York,  192  U.  S.  585. 

(CO)     Board  of  Excise  v.  Merchant,  103  New  York  148. 


Vol   XII— 12 


CHAPTER  TX. 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW: 
TAXATION. 

§  171.  General  requisites.  The  fundamental  guaran- 
tees of  the  Fifth  and  Fourteenth  Amendments  regarding 
due  process  and  equality  restrict  the  powers  of  taxation  of 
both  Federal  and  state  governments.  They  prohibit  legis- 
lation that  is  arbitrary  and  unreasonable  in  respect  to 
taxation,  just  as  they  restrict  such  legislation  in  other 
fields.  Other  specific  restrictions  upon  the  taxing  powers 
of  the  states  and  the  United  States,  not  included  under 
the  fundamental  guarantees  of  due  process  of  law  and 
equal  protection  of  the  laws,  will  be  discussed  elsewhere. 
See  §§  314-17,  below. 

The  principal  requisites,  with  respect  to  taxation,  en- 
forced by  these  constitutional  provisions  are  as  follows: 

(a)  The  taxing  power  must  have  jurisdiction  of  the 
subject  of  taxation. 

(b)  The  tax  must  be  levied  for  a  public  purpose. 

(c)  The  tax  must  not  be  arbitrarily  discriminatory, 
nor  disproportionate,  nor  confiscatory,  as  respects  the 
standards  proper  for  any  particular  case. 

Section  1.    Jueisdiction  fob  Purposes  of  Taxation. 
§  172.    Object  taxed  must  have  situs  in  jurisdiction. 
When  a  government  levies  a  tax  upon  property,  it  is  not 

158 


FUNDAMENTAL  RIGHTS  159 

valid  unless  the  property  is  located,  for  purposes  of  tax- 
ation, within  the  territorial  jurisdiction  of  the  taxing 
power ;  that  is,  it  must  have  a  situs,  as  it  is  called,  in  the 
jurisdiction.  Similarly,  when  it  taxes  occupations,  or 
privileges,  or  the  doing  of  acts,  the  occupation  must  be 
pursued,  or  the  privilege  exercised,  or  the  act  done,  inside 
the  jurisdiction  of  the  taxing  power.  Otherwise,  it  is  not 
taxation  at  all,  but  is  confiscation  (1). 

§  173.  Real  estate  and  chattels.  It  has  always  been 
admitted  that  real  estate  is  taxable  only  in  the  jurisdic- 
tion where  it  is  located.  Where  the  tax  is  upon  the 
tangible  land  itself  this  is  perfectly  clear,  but  the  rule  is 
the  same  even  when  the  right  is  an  intangible  one  con- 
nected with  the  land,  a  so-called  'incorporeal  heredita- 
ment," such  as  a  right  of  way  over  the  land  of  another, 
or  a  right  to  ferry  from  the  shore  of  a  river.  Such  rights 
can  be  taxed  only  where  the  land  is  to  which  they 
are  attached  (la).  A  mortgage  on  land  is  an  interest  in 
land  taxable  where  the  land  is  (2). 

The  same  rule  applies  to  tangible  personal  property, 
chattels.  If  permanently  kept  in  one  place  they  can  be 
taxed  as  property  there  only,  although  their  owner  may 
live  elsewhere.  The  state  where  he  lives  cannot  tax  them 
(3).  Where  an  owner  employs  the  same  article  of  prop- 
erty part  of  the  time  in  the  state  where  he  lives  and  a 
part  of  the  time  elsewhere,  it  may  be  taxed  as  property 


(1)  state  Tax  ou  Foreign-held  Bonds,  15  Wall.  300,  319. 

(la)  Louisville  &  Jeffersonville  Ferry  Co.  v.  Kentucky,  188  U.  S.  385. 

(2)  Savings  &  Loan  Society  v.  Multnomah  County,  169  U.  S.  421, 

(3)  D.,  L.  &  W.  R.  R.  Co.  V.  Pennsylvania,  198  U.  S.  341. 


160  CONSTITUTIONAL  LAW. 

where  he  lives  (4).  But  where  a  refrigerator  company 
domiciled  outside  of  Colorado  ran  its  cars  irregularly  in 
the  state  according  to  the  demands  of  business,  so  that 
there  was  an  average  of  forty-one  cars  in  the  state, 
though  composed  of  constantly  changing  cars,  it  was  held 
that  Colorado  could  tax  the  company  upon  the  value  of 
forty-one  cars  (5).  This  average  amount  of  property 
received  the  protection  of  the  state,  and  so  might  fairly  be 
taxed  there. 

§  174.  Coi*porate  assets.  Suppose  a  corporation,  doing 
business  wholly  in  Illinois,  has  issued  $1,000,000  worth  of 
stock,  owes  $500,000  worth  of  bonds,  and  has  $750,000 
worth  of  tangible  property,  real  and  personal,  in  the 
state.  What  is  the  total  property  value  of  this  corpora- 
tion?  Evidently  it  is  not  merely  the  value  of  its  tangible 
property,  for  its  stock  alone  is  worth  more  than  this,  and 
in  addition  to  the  stock  value  it  is  able  to  sustain  the 
value  of  $500,000  worth  of  bonds  that  it  has  issued.  The 
value  of  the  corporation  as  a  going  concern  is  fairly  in- 
dicated by  the  value  of  its  stock  and  bonds  together,  for 
if  the  bonds  were  paid  all  of  the  stock  would  be  worth 
approximately  that  much  more.  It  is  the  various  intan- 
gible values  connected  with  the  corporation  that  account 
for  this  great  difference  between  the  $750,000  of  tangible 
property  and  the  $1,500,000  gross  value  of  the  corpora- 
tion. These  intangible  values  consist  of  franchises, 
contracts,  the  good-will  of  an  established  business,  the 
business  ability  of  its  managers,  and  like  elements  upon 


(4)  New  York  v.  Miller,  202  U.  S.  584. 

(5)  American  Refrigerator  Co.  v.  Hall,  174  U.  S.  70. 


FUNDAMENTAL  RIGHTS  161 

which  are  based  the  expectations  of  dividends.  These 
intangible  values  may  be  taxed  by  the  state  just  like  any 
other  property,  and  the  method  of  determining  them  by 
adding  together  the  market  value  of  the  stock  and  bonds 
of  the  corporation  is  valid  (6). 

§  175.  Corporate  assets  in  several  states.  Suppose, 
however,  that  the  corporation  in  question  is  not  doing 
business  in  Illinois  alone,  but  in  several  states,  although 
its  home  office  is  in  Illinois.  May  these  other  states  also 
tax  a  share  of  these  intangible  values  of  the  corporate 
assets,  or  are  they  restricted  to  such  tangible  property  as 
they  can  find  belonging  to  it  within  their  respective  lim- 
its? The  Adams  Express  Company  had  altogether 
$16,000,000  worth  of  corporate  assets.  About  $4,000,000 
of  these  consisted  of  tangible  real  and  personal  prop- 
erty. In  Ohio  it  had  about  $67,000  of  property,  including 
money  and  credits.  About  1-30  of  its  mileage  and  busi- 
ness was  in  the  state  of  Ohio.  Ohio  taxed  express  com- 
panies upon  such  part  of  their  entire  capital  stock  as 
was  proportional  to  their  mileage  and  amount  of  business 
done  in  Ohio.  On  this  basis  the  property  of  the  Adams 
Company  in  Ohio  was  assessed  at  $533,000.  This  was 
upheld  by  the  United  States  Supreme  Court,  which  said: 

''But  where  is  the  situs  of  this  intangible  property? 
The  Adams  Express  Company  has,  according  to  its  show- 
ing, in  round  numbers  $4,000,000  of  tangible  property 
scattered  through  different  states,  and  with  that  tangible 
property  thus  scattered  transacts  its  business.    By  the 


(6)     state  Railway  Tax  Oases,  92  U.  S.  575. 


162  CONSTITUTIONAL  LAW 

business  which  it  transacts,  by  combining  into  a  single  use 
all  those  separate  pieces  and  articles  of  tangible  property, 
by  the  contracts,  franchises,  and  privileges  which  it  has 
acquired  and  possesses,  it  has  created  a  corporate  prop- 
erty of  the  actual  value  of  $16,000,000.  Thus,  according 
to  its  figures,  this  intangible  property,  its  franchises, 
privileges,  etc.,  is  of  the  value  of  $12,000,000,  and  its 
tangible  property  of  only  $4,000,000.  Where  is  the  situs  of 
this  intangible  property?  Is  it  simply  where  its  home 
office  is,  where  is  found  the  central  directing  thought  which 
controls  the  workings  of  the  great  machine,  or  in  the  state 
which  gave  it  its  corporate  franchise;  or  is  that  intangible 
property  distributed  wherever  its  tangible  property  is 
located  and  its  work  is  done?  Clearly,  as  we  think,  the 
latter.  Every  state  within  which  it  is  transacting  busi- 
ness and  where  it  has  its  property,  more  or  less,  may 
rightfully  say  that  the  $16,000,000  of  value  which  it  pos- 
sesses springs  not  merely  from  the  original  grant  of  cor- 
porate power  by  the  state  which  incorporated  it,  or  from 
the  mere  ownership  of  the  tangible  property,  but  it  springs 
from  the  fact  that  that  tangible  property  it  has  combined 
with  contracts,  franchises,  and  privileges  into  a  single 
unit  of  property,  and  this  state  contributes  to  that  aggre- 
gate value  not  merely  the  separate  value  of  such  tangible 
property  as  is  within  its  limits,  but  its  proportionate 
share  of  the  value  of  the  entire  property"  (7). 

The  same  rule  of  taxation,  commonly  called  the  "unit 
rule"  has  been  applied  similarly  to  other  kinds  of  busi- 


(7)     Adams  Express  Co.  v.  Ohio,  166  U.  S.  185,  223-4. 


FUNDAMENTAL  RIGHTS  163 

ness  extending  over  several  states,  such  as  telegraph  com- 
panies, railroads,  and  sleeping-car  companies.  The  pro- 
portion of  intangible  values  to  be  localized  in  any  par- 
ticular state  may  be  ascertained  in  any  fair  manner,  which 
is  usually  by  taking  a  part  of  it  proportional  to  the  mile- 
age or  business  done  in  the  taxing  state. 

The  only  limits  that  have  thus  far  been  suggested  upon 
the  principle  of  the  "unit  rule"  are  that  the  value  of  the 
property  outside  of  the  state,  not  directly  used  by  the  com- 
pany in  its  general  business,  like  bonds  held  for  invest- 
ment, must  be  deducted ;  and  that  a  fair  part  of  dispro- 
portionately valuable  property  held  outside  of  the  state, 
like  great  railroad  terminals,  must  be  deducted  in  ascer- 
taining the  mileage  value  of  the  road  in  states  where 
there  is  no  property  of  a  corresponding  character  (8). 

§  176.  Debts.  Suppose  A,  living  in  Vermont,  owes 
$100  to  X  living  in  New  York.  The  contract  right  to  re- 
i  cover  this  $100  from  A  is  unquestionably  valuable  prop- 
1  erty,  and  as  such  is  protected  in  many  ways  by  the  con- 
j  stitutional  guarantees  respecting  property.  Where  is 
!  this  property  located  for  purposes  of  taxation?  The 
,  property  consists  of  an  intangible  relation  between  A  and 
I  X,  created  by  law  in  consequence  of  their  agreement,  by 
;  which  X  is  entitled  to  compel  A  to  pay  him  $100.  It  is 
j  difficult  to  see  how  this  relation  can  be  property  where 
I  the  debtor  lives,  for  his  obligation  to  pay  is  quite  the  re- 
verse of  being  valuable  to  him,  and,  for  similar  reasons, 
'  the  obligation  does  seem  to  be  property  where  the  creditor 


(8)     Fargo  v.  Hart,  193  U.  S.  490, 


in4  CONSTITUTIONAL  LAW 

lives.  This  common  sense  view  of  the  matter  has  been 
accepted  by  the  courts,  and  it  is  generally  held  that  a 
debt,  pure  and  simple,  is  not  taxable  as  property  at  the 
residence  of  the  debtor  (9).  On  the  other  hand,  generally 
speaking,  debts  are  taxable  as  property  at  the  residence 
of  the  creditor  (10). 

§  177.  Documentary  evidence  of  debts  or  property. 
Suppose,  in  the  case  put  in  the  preceding  section,  that  A 
had  given  X  a  promissory  note  or  acknowledgment  as 
evidence  of  the  debt,  and  that  X  had  kept  this  in  Con- 
necticut, his  own  residence  still  being  in  New  York.  Could 
Connecticut  tax  this  evidence  of  debt  as  property  at  the 
full  value  of  the  debt?  In  a  recent  case  the  United  States 
Supreme  Court  denied  that  this  could  be  done,  at  least  if 
the  evidence  of  the  debt  were  a  document  other  than  a 
bond  or  a  bank-note,  and  if  no  business  of  any  character 
were  transacted  in  Connecticut  with  the  credits  repre- 
sented by  the  documents  (11).  As  regards  bonds  and 
bank-notes  they  have  historically  been  treated  as  if  they 
were  themselves  property  and  not  merely  evidence  of  it. 
Originally,  if  the  owner  of  a  bond  (a  contract  under  seal) 
lost  it  he  could  not  recover  the  debt ;  and  bank-notes,  pay- 
able to  bearer,  have  always  passed  from  hand  to  hand  in 
ordinary  use  as  money.  Bank-notes  will  probably  be  re- 
garded as  taxable  only  where  they  are,  like  tangible  prop- 
erty; and  it  is  perhaps  doubtful  what  will  be  held  in  re- 


(9)  state  Tax  on  Foreign-held  Bonds,  15  Wall.  300. 

(10)  Kirtland  v.  Hotchkiss,  100  U.  S.  491. 

(11)  Buck  V.  Beach,  206  U.  S.  392. 


FUNDiVMENTAL  RIGHTS  165 

gird  to  bends  when  an  actual  case  arises  in  the  Federal 
courts. 

Warehouse  receipts  for  goods  outside  of  a  state  also 
may  not  be  taxed  by  the  state  at  the  full  value  of  the 
goods,  at  least  unless  only  the  transfer  of  the  receipt 
could  transfer  the  title  to  the  goods.  The  ordinary  ware- 
house receipt  merely  represents  the  goods  for  purposes 
of  trade  convenience,  and  the  goods  themselves  may  be 
dealt  with  independently  of  it  (12). 

§  178.  Credits  employed  in  business.  If  intangible 
credits  are  employed  by  the  owner  in  business  outside  of 
the  state  where  he  lives,  they  acquire  a  situs  for  taxation 
at  the  place  where  they  are  thus  employed,  even  though 
the  documents  representing  them  are  most  of  the  time 
kept  elsewhere.  A  New  York  insurance  company  made 
loans  in  Louisiana  to  its  policyholders,  upon  the  security 
of  their  policies.  The  business  was  done  through  a  local 
agent  in  Louisiana,  and  the  notes  given  by  the  debtors 
and  the  policies  held  as  securities  were  sent  to  New  York 
until  they  were  paid,  when  they  were  sent  back  to  be  de- 
livered to  the  debtors.  The  Supreme  Court  held  these 
loans  were  taxable  in  Louisiana,  saying: 

"Here  the  loans  were  negotiated,  the  notes  signed,  the 
security  taken,  the  interest  collected,  and  the  debts  paid 
within  the  state.  The  notes  and  securities  were  in  Louisi- 
ana whenever  the  business  exigencies  required  them  to  be 
there.  .  .  .  We  are  not  dealing  here  merely  with  a  single 
credit  or  a  series  of  separate  credits,  but  with  a  business. 


(12)     Selliger  v.  Kentucky,  213  U,  S.  200. 


IfiG  CONSTITUTIONAL  LAW 

Tho  insiiranco  company  diose  to  enter  into  the  'business  c  f 
lending  money  within  the  state  of  Louisiana,  and  em- 
ployed a  local  agent  to  conduct  tliat  business.  It  was  con- 
ducted under  the  laws  of  the  state.  The  state  undertook 
to  tax  the  capital  employed  in  the  business  precisely  as  it 
taxed  the  capital  of  its  own  citizens  in  like  situation.  For 
the  purpose  of  arriving  at  the  amount  of  capital  actually 
employed,  it  caused  the  credits  arising  out  of  the  business 
to  be  assessed.  We  think  the  state  had  the  power  to  do 
this,  and  that  the  foreigner  doing  business  cannot  escape 
taxation  upon  his  capital  by  removing  temporarily  from 
the  state  evidences  of  credits  in  the  form  of  notes.  Under 
such  circumstances  they  have  a  taxable  situs  in  the  state 
of  their  origin"  (13). 

§  179.  Shares  of  stock.  When  a  corporation  is  organ- 
ized, the  artificial  corporate  entity  thus  created  is  the 
legal  owner  of  all  the  corporate  property.  The  taxation 
of  this  property,  tangible  and  intangible,  is  governed  as 
to  situs  by  the  same  rules  as  if  the  owner  were  an  indi- 
vidual. The  stockholders  of  the  corporation  have  an  in- 
terest in  it,  a  step  removed  from  the  actual  legal  owner- 
ship of  the  corporate  property.  Their  right  is  to  receive 
the  dividends  from  the  corporation,  if  any  are  earned  by 
the  corporate  management,  and  to  share  in  what  is  left 
after  the  payment  of  debts  when  the  corporation  is  dis- 
solved. The  interest  of  the  stockholders  in  the  corpora- 
tion is  sufficiently  different  from  the  coi'poration's  owner- 
ship of  its  property,  so  that  each  may  be  taxed  separately 


(13)     Metropolitan  Insurance  Co.  v.  New  Orleans,  205  U.  S.  395, 
>02-3. 


FUNDAMENTAL  RIGHTS  167 

although  the  same  property  or  business  really  give  value 
to  both.  ''It  is  well  settled  by  the  decisions  of  this  court 
that  the  property  of  the  shareholders  in  their  shares  and 
the  property  of  the  corporation  in  its  capital  stock  are 
distinct  property  interests,  and,  where  that  is  the  legis- 
lative intent  clearly  expressed,  that  both  may  be 
taxed"  (14). 

This  interest  of  the  shareholders  in  a  corporation  not 
only  is  property,  separate  from  the  property  of  the  cor- 
poration, but  apparently  it  may  be  treated  as  having  a 
taxable  situs  not  only  where  the  stockholder  lives,  but 
also  where  the  corporation  does  business.  A  Michigan 
stockholder  in  a  New  York  corporation  may  be  taxed  in 
Michigan  upon  the  full  value  of  hisi  New  York  stock,  even 
though  all  of  the  corporate  property  and  business  are  out- 
side of  Michigan  (15).  On  the  other  hand,  shares  of 
stock  may  also  be  treated  as  having  a  business  situs 
where  the  corporation  is  located  or  does  business,  andmay 
be  taxed  there  as  the  property  of  non-resident  share- 
holders (16).  Presumably,  however,  a  state  where  the 
stock  certificates  were  merely  kept  could  not  tax  them, 
provided  both  the  owner  and  the  corporation  were  domi- 
ciled elsewhere  (17). 

§  180.  Franchises.  A  franchise  is  a  privilege  grant- 
able  by  the  government  at  its  pleasure,  which  cannot  be 


(14)  New  Orleans  v.  Houston,  119  U.  S.  265,  277. 

(15)  Bacon  v.  Tax  Commissioners,  126  Mich.  22. 

(16)  Tappan  v.  Merchants'  National  Bank,  19  Wall.  490. 

(17)  See  Matter  of  Enston,  113  N.  Y.  p.  181;  and  Matter  of  Jameei, 
144  N.  Y.  p.  12. 


16S  CONSTITUTIONAL  LAW 

exercised  without  such  a  grant.  The  right  to  purchase 
property  against  the  will  of  the  owner  by  eminent  domain 
is  an  instance.  So  is  the  right  to  become  a  corporation 
and  exercise  corporate  powers.  So  is  the  right  to  take 
tolls  for  a  public  highway  or  feriy  or  railroad,  or  to  oc- 
cupy public  streets  with  pipes  or  conduits  or  poles,  as 
for  gas,  electric  wires,  and  trolley  lines. 

All  franchises  have  a  situs  for  taxation  wherever  they 
are  exercised.  The  most  striking  illustrations  of  this  are 
cases  of  corporate  franchises.  When  a  corporation  is 
chartered,  it  is  given  a  variety  of  franchises.  One  of 
these  is  the  franchise  of  corporate  capacity — to  be  a  cor- 
poration. Others  are  its  franchises  to  exercise  certain 
powers.  The  corporation  chartered  to  run  a  railroad  has 
different  corporate  powers  from  one  chartered  to  con- 
duct a  bank,  though  each  has  corporate  capacity.  These 
various  franchises  may  be  taxed  as  privileges  irrespective 
of  their  proi^erty  values,  in  any  place  where  they  are 
exercised;  and  they  may  also  be  taxed  as  property,  at 
their  fairly  ascertained  value,  either  separately,  or  in 
common  with  all  other  corporate  assets.  In  every  state 
in  which  a  corporation  does  business  it  exercises  its 
franchise  to  be  a  corporation  and  its  franchises  to  do  its 
particular  kind  of  business,  and  these  may  be  taxed  as 
property  wherever  it  does  business. 

''For  the  transaction  of  its  business  it  goes  into  vari- 
ous states,  and  wherever  it  goes  as  a  corporation  it  car^ 
ries  with  it  the  franchise  to  be.  But  the  franchise  to  be 
is  only  one  of  the  franchises  of  a  corporation.  The  fran- 
chise to  do  is  an  independent  franchise,  or  rather  a  com- 


FUNDAMENTAL  RIGHTS  169 

bination  of  franchises,  embracing  all  things  which  the 
corporation  is  given  power  to  do,  and  this  power  to  do  is 
as  much  a  thing  of  value  and  a  part  of  the  intangible 
property  of  the  corporation  as  the  franchise  to  be.  Fran- 
chises to  do  go  wherever  the  work  is  done.  The  Southern 
Pacific  Railway  Company  is  a  corporation  chartered  by 
the  state  of  Kentucky,  yet  within  the  limits  of  that  state  it 
is  said  to  have  no  tangible  property  and  no  ofiBce  for  the 
transaction  of  business.  The  vast  amount  of  tangible 
property  which  by  lease  or  otherwise  it  holds  and  oper- 
ates, and  all  the  franchises  to  do  which  it  exercises,  exist 
and  are  exercised  in  the  states  and  territories  on  the  Pa- 
cific slope.  Do  not  these  intangible  properties — these 
franchises  to  do — exercised  in  connection  with  the  tangi- 
ble property  which  it  holds,  create  a  substantive  matter 
of  taxation  to  be  asserted  by  every  state  in  which  that 
tangible  property  is  found?"  (18).    See  §  291,  below. 

The  Western  Union  Telegraph  Company,  which  has  a 
New  York  franchise,  may  be  taxed  upon  a  fair  share  of 
the  value  of  this  under  the  "unit  rule"  by  Missouri  when 
it  does  business  there  (19).    See  §  175. 

§  181.  Situs  of  property  for  inheritance  taxes.  A  kind 
of  taxation  recently  adopted  in  many  states,  and  of  in- 
creasing importance,  is  the  so-cailed  inheritance  tax — a 
tax  upon  the  right  to  succeed  to  property,  whether  by  in- 
heritance or  by  will,  upon  the  death  of  its  owner.  Ob- 
viously this  right  can  be  exercised  only  when  the  state  has 
jurisdiction  over  the  right  to  succession,  and  this  right, 


(18)  Adams  Express  Co.  v.  Ohio,  166  U.  g.  185,  224-5. 

(19)  Western  Union  Telegraph  Co.  v.  Missouri,  190  U.  S.  412. 


170  CONSTITUTIONAL  LAW 

being  intangible,  presents  various  nice  problems  as  to 
its  situs.  It  will  be  convenient  to  divide  the  discussion  of 
these  into  four  parts : 

(a)  Property  in  a  state  owned  by  a  resident  decedent. 

(b)  Property  out  of  the  state  owned  by  a  resident  de- 
cedent. 

(c)  Property  in  the  state  owned  by  a  non-resident 
decedent. 

(d)  Property  out  of  the  state  owned  by  a  non-resi- 
dent decedent. 

§  182.    Same:  Domestic  property  of  resident  decedent. 
Example :    A,  a  citizen  of  Illinois  dies,  leaving  land  and  ■ 
chattels  in  Illinois,  and  debts  due  him  from  Illinois 
debtors. 

Clearly  the  descent  of  all  this  property  upon  A's  death 
is  governed  solely  by  the  law  of  Illinois,  and,  for  the 
privilege  of  permitting  its  descent  to  A's  heirs  or  persons 
named  in  his  will,  Illinois  may  exact  a  tax.  As  to  this 
there  is  no  controversy. 

§  183.  Same:  Foreign  property  of  resident  decedent. 
Example :  A,  a  citizen  of  Illinois,  dies  leaving  land  and 
chattels  situated  in  Ohio,  and  debts  due  him  from  Ohio 
debtors.    What  succession  tax  can  be  collected  by  Illinois? 

As  regards  land,  the  succession  has  always  been  con- 
trolled by  the  state  where  it  is  located.  Illinois  cannot 
confer  or  take  away  anybody's  right  to  succeed  to  land 
in  Ohio,  and  so  there  is  nothing  for  Illinois  to  tax  (20). 
The  personal  property  in  Ohio  may  stand  differently. 
At  common  law,  each  state  permitted  personal  property 


(20)     Matter  of  Swift,  137  N.  Y.  77. 


FUNDAMENTAL  RIGHTS  171 

mthin  its  borders  to  descend  according  to  the  law  of  the 
residence  of  the  owner,  upon  the  latter 's  death.  If  this 
is  still  the  law  of  Ohio,  then  Illinois  may  tax  the  recipi- 
ents of  the  personal  property  in  Ohio  for  exercising  in 
their  favor  the  privilege  permitted  to  Illinois  by  Ohio 
(21).  In  such  a  case  both  Illinois  and  Ohio  might  levy  an 
inheritance  tax;  Ohio  for  permitting  the  law  of  Illinois 
to  govern,  and  Illinois  for  permitting  particular  persons 
to  succeed  to  the  property.  On  the  other  hand,  Ohio  may 
pass  a  statute  providing  specifically  how  personal  prop- 
erty in  the  state  shall  descend  upon  the  owner's  death, 
regardless  of  his  domicile.  In  this  case  there  is  nothing 
that  can  be  controlled  by  Illinois,  and  so  Illinois  could 
levy  no  inheritance  tax. 

Similarly,  at  least  until  Ohio  expressly  deals  with  the 
matter  differently  by  statute,  Illinois  may  say  who  shall 
succeed  to  the  Ohio  debt  owed  to  A  in  Illinois;  for  at 
common  law  this  matter  also  was  permitted  to  be  gov- 
erned by  the  law  of  the  decedent's  domicile.  Stock  in  a 
foreign  corporation,  owned  by  a  resident  of  Illinois,  is 
likewise  subject  to  a  succession  tax  by  Illinois  upon  the 
death  of  the  owner  (22). 

§  184.  Same:  Domestic  property  of  non-resident 
ieeedent.  Example:  A,  a  citizen  of  Ohio,  dies  leaving 
land  and  chattels  situated  in  Illinois,  stock  in  an  Illinois 
corporation,  and  debts  due  him  from  Illinois  debtors. 
He  also  owns  stock  in  an  Indiana  corporation,  and  notes 
and  bonds  due  him  from  Indiana  debtors.    These  latter 


(21)  (See  note  20.) 

(22)  In  r»  Merriam's  Estate,  141  N.  Y.  479. 


172  CONSTITUTIONAL  LAW 

stock,  notes,  and  bonds  are  kept  in  Illinois,  though  neither 
creditor,  debtor,  or  corporation  is  in  that  state.  What 
property  is  subject  to  an  Illinois  succession  tax? 

As  regards  the  land  and  chattels  in  Illinois,  Illinois  can 
of  course  control  the  succession  to  them,  and  so  has  the 
right  to  tax  the  succession.  Can  it  tax  the  succession  to 
the  Illinois  debt,  it  having  been  previously  decided  that 
a  debt  is  not  taxable  property  where  the  debtor  is?  It 
has  been  held  that  the  transfer  of  the  debt  can  be  con- 
trolled by  Illinois  laws,  because  the  transfer  can  only  be 
made  effective  through  jurisdiction  over  the  debtor,  in 
compelling  him  to  pay  (23).  A  creditor  of  the  Ohio 
owner  of  the  Illinois  debt  could  have  come  into  the  Illinois 
courts  and  compelled  the  Illinois  debtor  to  pay  his  debt 
to  him  in  satisfaction  of  his  claim  against  the  Ohio 
owner  of  the  Illinois  debt.  This  jurisdiction  over  the 
transfer  of  the  Illinois  obligation  enables  Illinois  to  tax 
its  transfer  at  the  death  of  the  owner,  although  it  could 
not  tax  it  as  property  in  the  state.  (See  §176,  above.) 
Illinois  may  also  tax  the  succession  to  the  stock  of  Illi- 
nois corporations,  no  matter  where  the  owner  lives,  nor 
where  the  stock  certificates  are  kept.  There  is  no  diffi- 
culty here,  inasmuch  as  the  stock  itself  has  a  taxable 
situs  in  the  state,  in  addition  to  the  control  the  state  can 
exercise  over  its  transfer  at  the  domicile  of  the  corpora- 
tion (24). 

The  succession  to  notes  and  bonds  kept  in  Illinois  may 
be  controlled  by  Illinois,  even  though  as  property  they 


(23)  Blackstone  v.  Miller,  188  U.  S.  189. 

(24)  Matter  of  Bronson,  150  N.  Y,  1. 


FUNDAMENTAL  RIGHTS  173 

would  not  be  taxable  there,  in  the  absence  of  both  debtor 
and  creditor  or  any  business  done  in  Illinois  with  the 
credits  thus  represented.  Illinois  has  power  to  control 
the  transfer  of  these  documents  upon  the  death  of  the 
owner,  and  may  exact  a  tax  for  permitting  any  particular 
kind  of  a  transfer  (25).  It  would  seem  that  the  same 
should  be  held  as  to  foreign  stock  certificates  kept  in 
Illinois,  but  there  is  one  New  York  decision  to  the 
contrary  (26). 

§  185.  Same:  Foreign  property  of  non-resident  dece- 
dent. Evidently  where  none  of  the  property,  nor  the 
owner  of  the  property,  nor  the  transfer  of  it  are  within 
the  jurisdiction  there  is  nothing  upon  which  a  state  may 
impose  succession  taxes.  One  doubtful  case  may  be  men- 
tioned here.  Suppose  A  in  Ohio  owns  bonds  of  an  Illinois 
debtor  and  keeps  them  in  Ohio.  The  bonds  are  payable  to 
bearer  and  upon  the  death  of  A  suppose  it  to  be  the  law  of 
Ohio  that  his  son  gets  title  to  the  bonds.  It  has  been  held 
that  this  leaves  nothing  for  Illinois  to  tax,  although  the 
debtor  lives  in  Illinois  (27).  Inasmuch  as  the  debt  must 
be  collected  in  Illinois,  perhaps  Illinois  might  tax  its 
transfer,  upon  the  reasoning  in  Blackstone  v.  Miller,  re- 
ferred to  above,  providing  its  law  was  so  framed  as  to 
affect  the  bonds  when  issued. 

Section  2.    What  is  a  Public  Puepose  foe  Taxation! 

§  186.  Discharge  of  governmental  functions.  The  power 

of  taxation  may  be  validly  used  to  assist  in  the  discharge 


(25)  Matter  of  Whiting,  150  N.  Y.  27. 

(26)  (See  note  25.) 

(27)  Matter  of  Bronson,  150  N.  Y.  1,  5-: 

Vol.  XII— 13 


174  CONSTITUTIONAL  LAW 

of  any  governmental  function,  whether  the  function  be 
exercised  directly  by  public  officers,  or  by  private  persons 
who  are  permitted  to  make  a  profit  from  the  discharge  of 
these  functions.  Governmental  activities  connected  with 
making,  interpreting,  and  enforcing  laws  are  the  com- 
monest illustrations  of  functions  discharged  directly  by 
public  officers.  They  include  all  of  the  machinery  by 
which  laws  are  made  and  enforced,  public  order  kept,  and 
justice  administered.  A  considerable  extension  of  public 
functions  beyond  these  essentials  is  increasingly  notice- 
able. Public  schools  and  charitable  institutions  are 
everywhere  maintained;  parks  and  public  amusements 
are  increasingly  provided;  gas,  electricity,  and  water  are 
in  many  places  furnished  directly  by  the  public ;  drainage 
and  irrigation  works  are  coming  to  be  likewise  main- 
tained ;  and  the  public  health  and  safety  are  increasingly 
made  the  subject  of  direct  public  action.  As  regards 
any  activity  really  benefiting  the  public,  and  which  may 
reasonably  be  thought  to  be  more  advantageously  con- 
ducted by  the  public  than  by  private  enterprise,  it  is 
difficult  to  pronounce  it  not  a  public  purpose.  Especially 
is  this  true  of  all  supervisory,  regulative,  and  adminis- 
trative activities.  The  legitimate  scope  of  these  will 
constantly  expand  with  the  complex  needs  of  society. 

At  present  several  functions  that  are  fairly  govern- 
mental in  their  nature  are  generally  permitted  to  be  sup- 
plied by  private  enterprise,  subject  to  public  regulation. 
Of  this  character  are  railroads,  street  railways,  telegraph 
and  telephone,  express  service,  and  in  many  places  the 
furnishing  of  light,  heat,  and  water.    An  analogous  activ- 


FUNDAMENTAL  RIGHTS  175 

ity,  the  transportation  of  mail,  has  in  this  country  always 
been  a  government  monopoly.  Banking  and  insurance  are 
activities  that  in  some  countries  are  and  in  all  countries 
doubtless  could  be  assumed  by  the  government.  All  of 
these  functions  may  be  assisted  by  public  taxation,  even 
though  they  are  carried  on  by  private  persons  for  profit. 
They  do  not  cease  to  be  public  functions  merely  because 
the  government  for  the  time  being  thinks  private  enter- 
prise a  more  advantageous  method  of  conducting  them. 
Early  in  our  history  public  aid  was  not  uncommonly  given 
to  railroads,  canals,  and  banks,  and  such  aid  has  almost 
uniformly  been  upheld  (28). 

§  187.  Objects  not  in  fact  of  public  benefit.  If  money 
raised  by  taxation  is  given  to  a  single  individual  to  be 
used  by  him  as  he  pleases,  or  for  some  purpose  really  not 
public,  as  to  build  himself  a  house,  this  is  invalid.  Taxes 
thus  exacted  for  purely  private  purposes  take  property 
without  due  process  of  law.  ''To  lay  with  one  hand  the 
power  of  the  government  on  the  property  of  a  citizen, 
and  with  the  other  to  bestow  it  upon  favored  individuals 
to  aid  private  enterprises  and  build  up  private  fortunes, 
is  none  the  less  a  robbery  because  it  is  done  under  the 
forms  of  law  and  is  called  taxation"  (29). 

§  188.  Demoralizing  public  benefits.  Suppose  instead 
of  revenue  derived  from  taxation  being  paid  to  a  single 
private  individual  or  a  few  such,  that  it  is  divided  among 
a  great  many;  a  sufficient  number  of  persons  being  thus 


(28)  Sharpless  v.  Philadelphia,  21  Pa,  147;   Railroad  Co.  v.  Otoe, 
16  Wall.  667. 

(29)  Loan  Association  v.  Topeka,  20  Wall.  655,  664. 


176  CONSTITUTIONAL  LAW 

benefited  so  that  it  c<an  fairly  be  regarded  as  a  public 
benefit.  Does  this  make  the  proceeding  valid?  It  may  be 
argued  that  the  number  of  persons  benefited  can  make  no 
difference,  for  the  benefit  to  each  one  is  private.  Plainly 
this  is  not  so,  however,  in  many  cases.  A  city  could  not 
validly  levy  taxes  to  supj^ly  free  drinking  water  for  a 
single  individual;  it  may  readily  do  so  to  supply  public 
drinking  fountains.  The  only  difference  here  consists  in 
the  number  of  persons  at  liberty  to  use  the  city's  bounty. 
Similarly,  a  city  could  not  supply  a  private  golf  course 
to  one  of  its  citizens,  but  it  may  equip  courses  in  its  parks. 
Even  though  a  city  may  not  give  $5  to  a  single  individual 
to  use  as  he  pleases,  why  may  it  not  raise  by  general  tax- 
ation enough  to  give  everyone  $5?  A  few  will  of  course 
contribute  much  more  than  others  in  producing  this  fund, 
which  all  share  equally;  but  the  same  thing  is  true  of  a 
public  golf  course.  Those  who  contribute  the  most  prob- 
ably never  use  it  at  all.  x^nd  it  is  surely  a  public  benefit 
that  eveiyone  should  have  $5. 

The  answer  seems  to  be  that,  owing  to  the  likelihood  of 
abuse,  certain  kinds  of  public  benefits  are  excluded  from 
the  legal  definition  of  a  public  purpose  for  which  money 
raised  by  taxation  may  be  used.  Particular  purposes 
which  the  experience  of  manldnd  has  found  to  be  ulti- 
mately demoralizing  or  oppressive  are  not  valid  public 
purposes,  even  though  temporarily  beneficial  to  large 
numbers  of  individuals.  Therefore  the  distribution  per 
capita  or  by  families  of  money  raised  by  public  taxation 
is  unconstitutional  (30).    The  same  was  held  in  another 


(30)     Hooper  v.  Emery,  14  Me.  375. 


FUNDAMENTAL  RIGHTS  177 

case  where  the  situation  appealed  much  more  to  public 
sympathy.  Just  after  the  great  Boston  fire  the  Massa- 
chusetts legislature  authorized  the  city  to  issue  $20,000,- 
000  of  bonds  for  money  to  be  loaned  to  owners  of  burned 
buildings,  secured  by  mortgages  on  their  land,  to  enable 
them  to  rebuild.  This  was  held  invalid,  the  Massachu- 
setts supreme  court  saying: 

* '  The  incidental  advantage  to  the  public,  or  to  the  state, 
which  results  from  the  promotion  of  private  interests, 
and  the  prosperity  of  private  enterprises  or  business,  does 
not  justify  their  aid  by  the  use  of  public  money  raised 
by  taxation,  or  for  which  taxation  may  become  necessary. 
It  is  the  essential  character  of  the  direct  object  of  the 
expenditure  which  must  determine  its  validity,  as  justify- 
ing a  tax,  and  not  the  magnitude  of  the  interests  to  be 
affected,  nor  the  degree  to  which  the  general  advantage  to 
the  community,  and  thus  the  public  welfare,  may  be  ulti- 
mately benefited  by  their  promotion'*  (31). 

§  189.  Supplying  needs  for  which  private  enterprise  is 
inadequate.  When  we  come  to  consider  activities  that 
neither  historically  nor  in  the  present  state  of  public  opin- 
ion can  be  called  governmental,  by  what  test  can  it  be  de- 
termined which  may  be  aided  by  public  taxation?  Con- 
sider, for  instance,  a  private  iron  works  in  Topeka,  Kan- 
sas, a  hotel  in  Milwaukee,  Wisconsin,  and  a  steam  grist- 
mill in  a  small  frontier  village.  Which  of  these  industries 
may  be  aided  by  public  taxation"? 

The  iron  works  is  seeking  a  location,  it  will  employ  a 


(81)     Lowell  V.  City  of  Boston,  111  Mass.  454,  461. 


178  CONSTITUTIONAL  LAW 

considerable  amount  of  labor,  it  will  add  much  to  the  busi- 
ness of  the  city,  it  will  increase  taxable  values.  Even 
under  these  circumstances  it  is  generally  held  that  such 
an  enterprise  may  not  be  assisted  by  public  taxation  (32). 
On  the  other  hand  public  assistance  to  the  grist-mill  was 
upheld,  grist-mills  being  required  by  statute  to  serve  all 
customers  according  to  certain  regulations  (33).  A  hotel 
is  also  required  by  law  to  serve  the  public  according  to 
certain  regulations,  without  discrimination,  but  public  aid 
to  a  hotel  was  held  invalid  in  Weeks  v.  Milwaukee  (34). 
The  principle  involved  in  such  cases  has  been  thus  dis- 
cussed by  a  New  Hampshire  judge : 

''What  is  it  that  settles  the  character  of  a  given  pur- 
pose, in  respect  to  its  being  public  or  otherwise?  .  .  . 
Why  is  the  building  of  roads  to  be  regarded  as  a  public 
service,  while  many  other  things  equally  necessary  for  the 
upholding  of  life,  the  security  of  property,  the  preserva- 
tion of  learning,  morality,  and  religion,  are  by  common 
consent  regarded  as  private,  and  so  left  to  the  private 
enterprise  of  the  citizens!  The  answer  to  this  question, 
surely,  is  not  to  be  found  in  any  abstract  principle  of  law. 
It  is  essentially  a  conclusion  of  fact  and  public  policy, 
the  result  of  an  inquiry  into  the  individual  necessities  of 
every  member  of  the  community  (which  in  the  aggregate 
show  the  character  and  urgency  of  the  public  need),  and 
the  likelihood  that  those  necessities  will  be  supplied  with- 
out interference  from  the  state.     .     .     .     Should  it  be 


(32)  Loan  Aesociation  v.  Topeka,  20  Wall.  655. 

(33)  Burlington  v.  Beasley,  94  U.  S.  310. 

(34)  10  Wis.  242. 


FUNDAMENTAL  RIGHTS  179 

found  by  experience  that  no  person  in  the  state  would, 
voluntarily  and  unaided,  establish  and  carry  on  any  given 
trade  or  calling,  necessary,  and  universally  admitted  to 
be  necessary,  for  the  upholding  of  life,  the  preservation 
of  health,  the  maintenance  of  decency,  order  and  civiliza- 
tion among  people,  would  not  the  carrjang  on  of  such 
necessary  trade  or  calling  thereupon  become  a  public 
purpose,  for  which  the  legislature  might  lawfully  impose 
a  tax? 

''Experience  shows  that  highways  would  not  be  built, 
or,  if  built,  would  not  be  located  in  the  right  places  with 
reference  to  convenient  transit  between  distant  points, 
nor  kept  in  suitable  repair,  but  for  the  control  assumed 
over  the  whole  matter  by  the  state;  and  so  the  state 
interferes,  and  establishes  a  system,  and  imposes  an 
enormous  burden  upon  the  people  in  the  shape  of  taxes, 
compelling  them  to  supply  themselves  with  what  they 
certainly  need,  but  need  no  more  than  they  need  shoes 
or  bread — and  nobody  ever  complained  that  the  inter- 
ference was  unauthorized,  or  the  purpose  other  than  a 
public  one"  (35). 

Private  capital  will  readily  supply  the  iron  works  in 
Topeka,  or  a  hotel  in  Milwaukee  if  there  is  any  public 
need  for  these.  The  same  may  not  be  said,  perhaps,  of 
a  steam  grist-mill  in  a  small  isolated  place.  It  could  not 
be  said,  perhaps,  of  a  hotel  located  in  some  place  where 
there  was  but  a  small  though  very  necessary  amount  of 
travel,  such  as  carrying  the  mail  overland  to  parts  of 


(35)     Perry  v.  Keene,  56  New  Hampshire  514,  532,  533. 


180  CONSTITUTIONAL  LAW. 

Alaska.  Under  this  view  of  the  matter  what  is  a  proper 
purpose  for  taxation  changes  with  economic  and  social 
conditions. 

§  190.  Influence  of  historical  considerations.  As  in 
most  governmental  matters,  history  and  experience  have 
more  weight  than  logic  in  determining  the  limits  of  legit- 
imate public  purposes.  "It  may  not  be  easy  to  draw  the 
line  in  all  cases  so  as  to  decide  what  is  a  public  purpose 
and  what  is  not.  .  .  .  And  in  deciding  whether,  in 
the  given  case,  the  object  for  which  the  taxes  are  as- 
sessed falls  upon  the  one  side  or  the  other  of  this  line, 
they  must  be  governed  mainly  by  the  course  and  usage 
of  the  government,  the  objects  for  which  taxes  have  been 
customarily  and  by  long  course  of  legislation  levied, 
what  objects  or  purposes  have  been  considered  necessaiy 
to  the  support  and  for  the  proper  use  of  the  government, 
whether  state  or  municipal.  Whatever  lawfully  pertains 
to  this,  and  is  sanctioned  by  time  and  the  acquiescence 
of  the  people,  may  well  be  held  to  be  of  public  use,  and 
proper  for  the  maintenance  of  good  government,  though 
this  may  not  be  the  only  criterion  of  rightful 
taxation"  (36). 

§  191.  Tax  exemptions.  It  may  be  urged  with  much 
force  that  the  exemption  of  certain  property  from  taxa- 
tion is  equivalent  to  assisting  it  by  public  taxation  to 
this  extent,  as  other  property  must  pay  somewhat  more 
in  consequence.  Where  the  jDroperty  exempted  is  that  of 
a  class,  rather  than  of  an  individual,  the  question  really 
becomes   one   of  proper  classification  for  purposes  of 


(36)     Loan  Association  v.  Topeka,  20  Wall.  G55,  664,  665. 


FUNDAMENTAL  RIGHTS  181 

taxation,  rather  than  one  as  to  a  public  purpose.  The 
two  run  into  each  other,  however,  as  where  a  constitu- 
tion forbids  state  aid  to  any  church  or  religious  sect. 
The  payment  of  money  derived  from  taxation  to  a  church 
is  certainly  invalid  under  this  provision,  but  tax  exemp- 
tions of  the  property  of  churches  and  religious  bodies  are 
almost  everywhere  upheld,  probably  because  historically 
these  exemptions  have  generally  been  made. 

Where  the  tax  exemption  is  granted  in  an  individual 
case,  because  of  the  public  benefit  supposed  to  be  derived 
from  the  establishment  of  a  new  industry,  the  decisions 
are  conflicting.  The  Mississippi  constitution  expressly 
permits  it,  and  the  United  States  Supreme  Court  appar- 
ently denies  that  the  Fourteenth  Amendment  prohibits 
this  (37).  A  practical  distinction  between  granting 
monetary  aid  and  giving  a  tax  exemption  is  that  the 
latter  is  closely  limited  in  amount  and  so  not  susceptible 
of  great  abuse. 

Any  indirect  benefits  to  private  business  from  the  op- 
eration of  tax  laws,  as  by  a  protective  tariff  for  instance, 
are  valid  under  other  governmental  powers,  like  that 
to  regulate  foreign  commerce. 

§  192.  Discharging  moral  obligations  of  government. 
In  the  absence  of  express  constitutional  restrictions,  a 
government  may  use  its  revenue  from  taxation  to  dis- 
charge not  only  obligations  that  would  be  legally  enforce- 
able between  individuals  but  also  moral  obligations.    If 


(37)  Held  invalid,  Brewer  Brick  Co.  v.  Brewer,  62  Me.  62;  and 
I  valid  in  Franklin  Needle  Company  v.  Franklin,  65  N.  H,  177.  See 
I  Mississippi  Const,  of  1890,  §§  182,  192;  and  Florida  Central  Ry.  Co.  v. 
1  Reynolds,  183  U.  S.  p.  476. 


182  CONSTITUTIONAL  LAW 

public  bonds  are  invalid  through  some  informalitj',  the 
legislature  may  validate  them  (38).  Claims  barred  by 
the  statute  of  limitations  may  still  be  paid.  Perhaps  the 
strongest  case  upon  moral  obligations  arose  out  of  the 
Federal  sugar  bounty  of  1890.  Congress  provided  a 
bounty  to  sugar  growers  in  lieu  of  a  protective  tariff, 
and  when  the  bounty  was  repealed  it  was  provided  that 
bounties  already  earned  should  be  paid.  The  payment 
was  attacked  as  an  unconstitutional  grant  to  a  private 
business.  The  court  held  that  whether  the  original  sugar 
bounty  law  was  unconstitutional  or  not,  Congress  owed 
a  moral  obligation  to  persons  who  in  good  faith  had  re- 
lied upon  it,  and  might  discharge  this  by  the  subsequent 
law.    The  court  said: 

''These  parties  cannot  be  held  bound,  upon  the  ques- 
tion of  equitable  or  moral  consideration,  to  know  what  no 
one  else  actually  knew,  and  what  no  one  could  know  prior 
to  the  determination,  by  some  judicial  tribunal,  that  the 
law  was  unconstitutional.  .  .  .  We  are  of  the  opin- 
ion that  parties,  situated  as  were  the  plaintiffs  in  this 
case,  acquired  claims  upon  the  government  of  an  equit- 
able, moral,  or  honorary  nature.  .  .  .  Under  the 
provisions  of  the  Constitution  Congress  has  power  to 
lay  and  collect  taxes,  etc.,  to  pay  the  debts  of  the  United 
States.  .  .  .  The  term  'debts'  includes  those  debts 
or  claims  which  rest  upon  a  merely  equitable  or  honor- 
ary obligation,  and  which  would  not  be  recoverable  in  a 
court  of  law  if  existing  against  an  individual"  (39). 


(38)  New  Orleans  v.  Clark,  95  U.  S.  644. 

(39)  United  States  v.  Realty  Co.,  163  U.  S.  427,  438-40. 


FUNDAMENTAL  RIGHTS  183 

§  193.  Pensions.  The  ground  of  moral  obligation  is 
sufficient  to  support  pensions  granted  after  tlie  event  to 
persons  who  have  rendered  conspicuous  public  services 
or  to  persons  who  have  rendered  services  of  unusual 
hazard,  even  though  in  humble  positions.  Soldiers,  sail- 
ors, firemen,  and  policemen  are  common  instances  of  the 
latter.  Such  pensions  may  be  paid  not  merely  to  the 
person  rendering  the  service,  but  to  his  family  and  other 
dependents  (40).  Of  course  an  agreement  may  be  made 
with  any  public  officers  for  future  pensions  as  part  of 
the  compensation  for  present  services. 

§  194.  Public  charity.  The  relief  of  actual  paupers  is 
of  course  a  valid  governmental  function,  and  the  tempo- 
rary relief  of  persons  suffering  from  sudden  calamity 
seems  of  the  same  general  character.  Both  are  designed 
to  remove  pressing  needs  not  likely  to  be  directly  pro- 
vided for  by  private  means.  A  state  appropriation  has 
been  upheld  for  expenditures  made  in  burying  the  dead, 
caring  for  the  injured,  and  cleaning  up  debris  after  a 
cyclone  (41).  An  appropriation  was  upheld  in  North 
Dakota  to  purchase  grain  for  a  considerable  number  of 
farmers  whose  credit  had  been  exhausted  by  a  succession 
of  bad  crops,  farming  being  the  principal  industry  in 
that  state  (42). 


(40)  United  States  v.  Hall,  98  U.  S.  343;  Opinion  of  Justices,  175 
Mass.  599.     See  Opinion  of  Justices,  190  Mass.  611. 

(41)  State  V.  Davidson,  114  W^is.  563. 

(42)  North  Dakota  v.  Nelson  County,  1  N.  D.  88;  contrary,  State 
V.  Osawkee,  14  Kan.  418. 


184  CONSTITUTIONAL  LAW 

Section  3.    Classification  of  Objects  for  Taxation. 

§  195.  In  general.  As  was  observed  in  §  171,  above, 
the  coiistitiitioual  guarantees  of  due  process  and  equality 
require  in  regard  to  taxation  that  it  shall  not  be  arbitrar- 
ily discriminatory,  nor  disproi^ortionate,  nor  confisca- 
tory, as  respects  standards  proper  to  be  observed  in  any 
particular  case.  Broadly  speaking,  the  problem  here, 
except  in  the  case  of  wholesale  confiscation  under  the 
guise  of  taxation,  is  one  of  classification.  The  objection 
that  a  tax  is  discriminatory,  or  disproportionate  is  really 
leveled  at  the  classification  employed,  either  with  respect 
to  the  territory  within  which  the  tax  is  laid,  the  objects 
upon  which  it  falls,  or  the  method  in  which  its  amount 
is  ascertained. 

§  196.  General  municipal  taxation.  **It  is  for  the  state 
to  determine  its  political  subdivisions,  the  numl^er  and 
size  of  its  municipal  corporations  and  their  territorial 
extent.  These  are  matters  of  a  local  nature,  in  which  the 
nation,  as  a  whole,  is  not  interested,  and  in  which,  by  the 
very  nature  of  things,  the  determination  of  the  state 
authorities  should  be  accepted  as  authoritative  and  con- 
trolling" (43).  If  there  are  no  local  constitutional  pro- 
visions upon  the  matter,  a  state  is  not  obliged  to  create 
any  political  or  municipal  subdivisions  at  all,  but  may 
govern  itself  altogether  as  a  single  political  unit.  In 
this  case,  it  could  doubtless  levy  taxes  upon  property  in 
the  state  generally,  and  spend  the  money  for  needed 
improvements  in  any  parts  of  the  state  the  government 


(43)     Forsyth  v.  Hammond,  166  U.  S.,  506,  518. 


FUNDAMENTAL  RIGHTS  185 

chose.  State-wide  taxation  could  be  used  to  raise  the 
money  and  build  a  bridge  or  pave  a  street  in  a  single 
city.  The  extraordinary  inconvenience  of  such  a  system 
makes  it  extremely  unlikely  that  any  state  will  ever  adopt 
it.  The  operation  of  the  principle  involved,  however, 
may  be  seen  in  cases  where  the  boundaries  of  municipal 
corporations  have  been  enlarged  and  general  taxes  levied 
over  its  entire  extent  to  furnish  the  money  for  public 
improvements  located  within  the  municipality  but  so  far 
distant  from  some  of  the  property  taxed  as  to  be  of  no 
benefit  to  it  whatever.  For  instance,  Pennsylvania  an- 
nexed to  the  city  of  Pittsburg  a  township  containing  a 
large  amount  of  farm  land,  as  yet  usable  for  agricultural 
purposes  only.  The  land  was  not  laid  off  into  lots,  nor 
w^re  any  streets  run  through  it,  nor  was  it  supplied 
by  the  municipality  with  water  or  gas.  This  farm  land 
was  subject  to  the  same  general  taxation  as  the  rest  of 
the  city  of  Pittsburg,  the  tax  being  used,  among  other 
purposes,  to  supply  water  and  gas  and  maintain  streets 
in  the  more  thickly  settled  parts  of  the  city.  This  pro- 
cedure was  upheld  by  the  Supreme  Court  (44). 

§  197.  Municipal  taxing  district  may  be  created  for 
special  purpose.  The  general  principle  is  that  taxation 
over  the  entire  territory  of  any  municipal  subdivision 
is  valid,  even  though  the  proceeds  be  applied  to  improve- 
ments in  the  subdivision  that  leave  many  persons  and 
much  property  unbenefited.  It  is  not  necessary  that  the 
municipal  subdivision  throughout  which  the  tax  is  levied 
should  be  one  existing  for  general  governmental  pur- 


(44)     Kelly  v.  Pittsburg,  104  U.  S.,  78. 


1S6  CONSTITUTIONAL  LAW 

poses,  like  a  city,  town,  or  county.  It  may  be  created 
solely  for  the  purpose  of  raising  money  for  some  specific 
improvement,  and  its  boundaries  may  be  determined  by 
a  commission  appointed  by  the  legislature,  as  well  as  by 
the  legislature  itself.  In  California  a  law  authorized  the 
creation  of  irrigation  districts  by  commissioners  who 
were  authorized  to  include  within  the  boundaries  of  a 
district  all  lands  which  in  their  natural  state  would  be 
benefited  by  irrigation  and  susceptible  of  it  by  one  sys- 
tem, regardless  of  the  fact  that  the  proposed  system 
would  be  useless  to  city  buildings  or  land  already  suffi- 
ciently irrigated  within  the  district.  All  property  in  the 
district  was  to  be  taxed  equally  according  to  its  value, 
and  regardless  of  the  benefit  to  it  from  the  irrigation 
works.  Persons  owning  city  property  and  lands  already 
irrigated  which  would  not  be  actually  benefited  by  the 
proposed  system  objected,  but  the  law  was  upheld.  The 
court  said: 

**The  legislature  thus  in  substance  provides  for  the 
creation  not  alone  of  a  public  corporation,  but  of  a  taxing 
district  whose  boundaries  are  fixed,  not  by  the  legisla- 
ture, but,  after  a  hearing,  by  the  board  of  supervisors, 
subject  to  the  final  approval  by  the  people  in  an  election 
called  for  that  purpose.  It  has  been  held  in  this  court 
that  the  legislature  has  power  to  fix  such  a  district  for 
itself  without  any  hearing  as  to  benefits,  for  the  purpose 
of  assessing  upon  the  lands  within  the  district  the  cost 
of  a  local,  public  improvement"  (45). 

§  198.    Illustrations.    Limits  of  doctrine.     Nor  is  it 


(45)     Fan  Brook  Irrigation  District  v.  Bradley,  164  U.  S.,  117,  174. 


FUNDAMENTAL  RIGHTS  187 

an  objection  that  the  public  improvement,  for  the  crea- 
tion of  which  a  taxing  district  has  been  established,  will 
also  benefit  persons  and  property  outside  of  the  taxing 
district.  For  instance,  the  state  may  create  a  taxing 
district  out  of  a  single  village  for  building  a  state  nor- 
mal school  there,  to  which  students  will  come  from  all 
parts  of  the  state;  or  such  a  district  may  be  created  out 
of  a  certain  part  of  a  city  for  grading  a  street  and  mov- 
ing a  railroad  therein  (46).  The  only  limit  suggested 
upon  this  doctrine  is  in  such  gross  cases  as  were  put  by 
the  court: 

''For  instance,  if  the  general  expenses  of  the  govern- 
ment of  the  state,  or  of  one  of  its  municipal  divisions, 
should  be  levied  upon  the  property  of  an  individual  or 
set  of  individuals,  or  perhaps  upon  a  particular  district. 
Cases  of  this  description  might  be  imagined  in  which  an 
act  would  fall  within  the  express  prohibitions  of  the  con- 
stitution. But  to  raise  the  constitutional  question  would 
require  an  extreme  case,  where  .  .  .  one  district 
should  be  confessedly  and  arbitrarily  required  to  pay  for 
benefits  conferred  upon  others  who  bore  no  proportion 
of  the  burden.  No  such  question  arises  where  a  tax  is 
imposed  upon  a  particular  locality  to  aid  in  a  public  pur- 
pose which  the  legislature  may  reasonably  regard  as  a 
benefit  to  that  locality  as  well  as  to  the  state  at 
large"  (47). 

Of  course  it  is  not  necessary  that  the  improvement  for 


(46)  Gordon  v.  Cornes,  47  N.  Y.,  608;  Litchfield  v.  Vernon,  41  N.  Y., 
123. 

(47)  Gordon  v.  Cornes.  47  N.  Y.,  608,  612. 


188  CONSTITUTIONAL  LAW 

which  a  district  is  taxed  be  located  within  the  district, 
provided  that  the  district  obtains  a  reasonable  amount 
of  benefit  from  it.  A  state  may  by  taxation  build  a  rail- 
road to  it  even  through  another  state;  but  taxation  of 
one  district  for  improvements  located  in  and  substan- 
tially beneficial  only  to  another  district  would  be 
invalid  (48). 

§  199.  Theory  of  local  assessments.  If  the  legislature 
has  not  created  or  authorized  the  creation  of  some  spe- 
cial municipal  subdivision  or  taxing  district,  which  can 
be  treated  as  a  unit  for  fiscal  purposes  irrespective  of 
benefits  to  the  persons  or  property  taxed;  nevertheless, 
taxes  may  be  levied  upon  a  part  of  the  property  included 
in  any  existing  municipality  upon  the  principle  of  "local 
assessments."  These  go  upon  the  gi'ound  that  property 
specially  benefited  by  a  public  improvement  may  fairly 
be  required  to  pay  the  amount  of  this  special  benefit,  in 
addition  to  the  general  tax  which  it  pays  in  common  with 
all  other  similar  property  in  the  municipality.  A  New 
Jersey  opinion  upon  this  point  has  been  quoted  with  ap- 
proval by  the  Supreme  Court : 

"But  while  it  is  thus  clear  that  the  burden  of  a  par- 
ticular tax  may  be  placed  on  any  political  district  to 
whose  benefit  such  tax  is  to  enure,  it  seems  to  me  it  is 
equally  clear  that,  when  such  burden  is  sought  to  be  im- 
posed on  particular  lands,  not  in  themselves  constitut- 
ing a  political  subdivision  of  the  state,  we  at  once  ap- 
proach the  line  which  is  the  boundary  between  acts  of 


(48)     Walker  v.  Cincinnati,  21  Ohio  14;  Farris  v.  Vannier,  6  Dakota, 
186. 


FUNDAMENTAL  RIGHTS  189 

taxation  and  acts  of  confiscation.  .  .  .  If  a  statute 
should  direct  a  certain  street  in  a  city  to  be  paved,  and 
the  expense  of  such  paving  to  be  assessed  on  the  houses 
standing  at  the  four  corners  of  such  street,  this  would 
not  be  an  act  of  taxation,  and  it  is  presumed  that  no  one 
would  assert  it  to  be  such.  If  this  cannot  be  maintained, 
then  it  follows  that  it  is  conceded  that  the  legislative 
power  in  questiton  is  not  completely  arbitrary.  It  has 
its  limits ;  and  the  only  inquiry  is,  where  that  limit  is  to 
be  placed 

''In  our  judgment,  the  exaction  from  the  owner  of 
private  property  of  the  cost  of  a  public  improvement  in 
substantial  excess  of  the  special  benefits  accruing  to  him 
is,  to  the  extent  of  such  excess,  a  taking,  under  the  guise 
of  taxation,  of  private  property  for  public  use  without 
compensation.  We  say  'substantial  excess'  because  ex- 
act equality  of  taxation  is  not  always  attainable,  and  for 
that  reason  the  excess  of  cost  over  special  benefits,  unless 
it  be  of  a  material  character,  ought  not  to  be  regarded 
by  a  court  of  equity  when  its  aid  is  invoked  to  restrain 
the  enforcement  of  a  special  assessment"  (49). 

Where  therefore  the  cost  of  opening  a  new  street  was 
assessed  upon  the  abutting  owners,  without  inquiry  as 
to  the  amount  of  their  benefits  therefrom,  the  assess- 
ment was  held  invalid. 

§  200.  Same:  Exceptions  and  qualifications.  Al- 
though a  local  or  special  assessment  may  not  exceed  the 
amount  of  the  benefits,  yet  it  is  probably  prima  facie 
valid  when  levied  by  the  ''front-foot  rule,'*  provided  it 


(49)     Norwood  v.  Baker,  172  U.  S.,  269,  282-83,  278-79. 

Vol.  XII— 14 


190  CONSTITUTIONAL  LAW 

is  reasonably  clear  tbat  ordinarily  the  tax  does  not  ex- 
ceed benefits  under  this  rule.  For  instance,  the  cost  of  a 
curbing,  a  pavement,  or  a  branch  sewer  usually  benefits 
abutting  proj^erty  about  in  proportion  to  its  frontage; 
and  so  a  law  imposing  a  local  assessment  according  to 
this  rule  is  prima  facie  valid,  even  though  it  does  not 
make  a  special  inquiry  as  to  particular  benefits  in  the 
case  of  each  lot.  If  any  particular  lot  is,  under  this  rule, 
benefited  substantially  less  than  it  is  taxed,  it  may  ob- 
tain relief;  but  the  tax  law  as  a  whole  is  valid  (50). 

It  is  not  a  valid  objection  to  a  local  assessment  that 
considerable  property  actually  benefited  is  not  taxed; 
provided  that  the  property  taxed  is  benefited  by  the 
amount  of  the  tax  (51).  Persons  on  adjoining  streets  are 
often  benefited  by  imjorovements  on  one  street,  but  they 
need  not  be  required  to  contribute  to  these  improvements. 
Probably  a  very  gross  or  unusual  discrimination  would 
be  invalid,  as,  for  instance,  if  the  people  of  only  one  side 
of  a  street  were  taxed  for  the  entire  pavement.  They 
might  be  benefited  as  much  as  it  cost,  but  the  people  on 
the  other  side  of  the  street  are  so  exactly  in  the  same 
situation  that  their  exemption  is  purely  arbitrary. 

It  is  generally  held  that  an  abutting  owner  may  be 
made  to  bear  the  entire  expense  of  a  sidewalk  in  front 
of  his  premises  regardless  of  benefits.  *'A  sidewalk  has, 
always  in  the  laws  and  usages  of  this  state,  been  re- 
garded as  an  appendage  to,  and  a  part  of,  the  premises 


(50)  Norwood  v.  Baker,  172  U.  S.,  269,  279;  French  v.  Barber  As- 
phalt Co.,  ISl  U.  S.,  324. 

(51)  State  V    Patterson,  42  N.  J    L.,  615. 


FUNDAMENTAL  RIGHTS  191 

to  which  it  is  attached,  and  is  so  essential  to  the  bene- 
ficial use  of  such  premises,  that  its  improvement  may 
well  be  regarded  as  a  burden  belonging  to  the  ownership 
of  the  land,  and  the  order  or  requisition  for  such  im- 
provement as  a  police  regulation.  On  this  ground  I  con- 
ceive it  to  be  quite  legitimate  to  direct  it  to  be  put  in 
order  at  the  sole  expense  of  the  owner  of  the  property  to 
which  it  is  subservient  and  indispensable"  (52).  Like- 
wise, in  most  states  he  may  be  required  to  bear  the  ex- 
pense of  keeping  his  sidewalk  clean,  irrespective  of  bene- 
fits to  him. 

§  201.  Different  kinds  of  taxes.  Taxation,  being  de- 
signed to  raise  a  revenue  for  the  purposes  of  government, 
has  at  various  times  been  exercised  upon  the  most  di- 
verse classes  of  objects.  Some  of  the  commonest  kinds 
have  been:  an  ad  valorem  property  tax,  as  one  of  2%  on 
the  value  of  all  or  certain  kinds  of  property;  an  excise 
tax  on  property,  as  one  of  $2  on  each  automobile,  re- 
gardless of  value ;  a  license  tax,  either  of  a  fixed  amount 
on  certain  occupations,  like  the  ordinary  license  taxes, 
or  a  tax  graded  according  to  receipts  or  profits;  an  in- 
come tax;  privilege  taxes  levied  either  at  a  fixed  or 
graded  rate  upon  the  exercise  of  certain  privileges,  such 
as  franchises,  suffrage,  and  the  inheritance  of  property ; 
taxes  on  persons,  as  a  capitation  tax ;  taxes  on  acts,  such 
as  drawing  a  check,  or  making  a  deed,  or  giving  a  re- 
ceipt; and  taxes  upon  documents  and  various  steps  in 
business  or  legal  proceedings. 

§202.    Legislative  discretion  in;  selecting  objects  of 


(52)     State  v.  Newark,  37  N.  J.  L.,  p.  423. 


192  CONSTITUTIONAL  LAW. 

taxation.  A  very  wide  discretion  is  possessed  by  legis- 
lative bodies  in  determining  the  objects  of  taxation,  both 
of  property  and  of  business.  Within  what  limits  this 
power  extends  may  be  seen  from  the  quotations  which 
follow : 

**A  tax  may  be  imposed  only  upon  certain  callings 
and  trades,  for,  when  the  state  exerts  its  power  to  tax, 
it  is  not  bound  to  tax  all  pursuits  or  all  property  that 
may  be  legitimately  taxed  for  governmental  purposes. 
It  would  be  an  intolerable  burden  if  a  state  could  not  tax 
any  property  or  calling  unless,  at  the  same  time,  it  taxed 
all  property  or  all  callings  (53). 

**The  provision  in  the  Fourteenth  Amendment,  that 
no  state  shall  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws,  was  not  intended  to 
prevent  a  state  from  adjusting  its  system  of  taxation  in 
all  proper  and  reasonable  ways.  It  may,  if  it  chooses, 
exempt  certain  classes  of  property  from  any  taxation 
at  all,  such  as  churches,  libraries,  and  the  property  of 
charitable  institutions.  It  may  impose  different  specific 
taxes  upon  different  trades  and  professions,  and  may 
vary  the  rates  of  excise  upon  various  products;  it  may 
tax  real  estate  and  personal  property  in  a  different  man- 
ner ;  it  may  tax  visible  property  only,  and  not  tax  securi- 
ties for  payment  of  money;  it  may  allow  deductions  for 
indebtedness,  or  not  allow  them. 

**A11  such  regulations,  and  those  of  like  character,  so 
long  as  they  proceed  within  reasonable  limits  and  general 
usage,  are  within  the  discretion  of  the  state  legislature, 


(53)     Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.,  540.  562. 


FUNDAMENTAL  RIGHTS  193 

or  the  people  of  the  state  in  framing  their  constitution. 
But  clear  and  hostile  discriminations  against  particular 
persons  and  classes,  especially  such  as  are  of  an  unusual 
character,  unknown  to  the  practice  of  our  governments, 
might  be  obnoxious  to  the  constitutional  prohibi- 
tion" (54). 

**The  power  of  the  legislature  over  the  subject  of  taxa- 
tion, except  as  limited  by  constitutional  restrictions,  is 
unbounded.     It  is  for  that  body,  in  the  exercise  of  its 
discretion,  to  select  the  objects  of  taxation.    It  may  im- 
I  pose  all  the  taxes  upon  lands,  or  all  upon  personal  prop« 
j   erty,  or  all  upon  houses  or  upon  incomes.    It  may  raisci 
]  revenue  by  capitation  taxes,  by  special  taxes  upon  car- 
riages,  horses,  servants,  dogs,  franchises,  and  upon  every 
I  species  of  property  and  upon  all  kinds  of  business  and 
j  trades"  (55). 

*^  While  a  tax  upon  a  particular  house,  or  horse,  or  the 
houses  or  horses  of  a  particular  man,  or  on  the  sale 
I  thereof,  would  obviously  invade  a  constitutional  right; 
j  still  a  tax  upon  all  houses,  leaving  barns  and  business 
I  buildings  untaxed,  or  upon  all  horses  or  the  sale  thereof, 
I;  leaving  sheep  and  cows  untaxed,  however  unwise,  would 
I  be  within  the  power  of  the  legislature.  This  is  true  of  a 
;'  tax  on  all  houses  with  'more  than  one  chimney,'  or  'with 
I  more  than  one  hearthstone,'  or  on  all  race-horses"  (56). 

I      §203.    Same:    Limitations.  ''While  the  legislature  has 
i|  wide  latitude  in  classification,  its  power  in  that  regard  is 


(54  J     Bell's  Gap  Railroad   Co.  v.   Pennsylvania,   134  U.   S.,  232. 

(55)  Matter  of  McPlierson,  104  N.  Y.,  306,  316-17. 

(56)  People  v.  Reardon,  184  N.  Y.,  431,  445. 


194  CONSTITUTIONAL  LAW 

not  without  limitation,  for  the  classification  must  have 
some  basis,  reasonable  or  unreasonable,  other  than  mere 
accident,  whim  or  caprice.  There  must  be  some  support 
of  taste,  policy,  difference  of  situation  or  the  like,  some 
reason  for  it  even  if  it  is  a  poor  one.  While  the  state  can 
tax  some  occupations  and  omit  others,  can  it  tax  only- 
such  members  of  a  calling  as  have  blue  eyes  or  black 
hair?  We  have  said  that  it  could  tax  horses  and  leave 
sheep  untaxed,  but  it  does  not  follow  that  it  could  tax 
white  horses  and  omit  all  others,  or  tax  the  sale  of  certifi- 
cates printed  on  white  paper  and  not  those  on  yellow  or 
brown.  While  one  class  may  be  made  of  horses  and  an- 
other of  sheep,  or  even  a  class  made  of  race-horses,  ow- 
ing to  the  use  made  of  them,  without  a  shock  to  common 
sense,  a  classification  limited  to  white  horses  would  be 
so  arbitrary  as  to  amount  to  tyranny,  because  there 
would  be  no  semblance  of  reason  for  it.  A  classification 
of  dealers  in  cigarettes  into  those  selling  at  wholesale 
without  the  state  and  those  selling  at  retail  within  the 
state  was  sustained  on  the  ground  that  the  two  occupa- 
tions are  distinct,  but  could  dealers  in  any  commodity  be 
classified  according  to  age,  size,  or  complexion^  A  classi- 
fication of  sales  into  those  made  in  an  exchange  and 
those  made  elsewhere  was  sustained  in  another  case,  but 
could  exchanges  be  so  classified  as  to  tax  only  such  sales 
as  are  made  in  those  carried  on  in  brick  buildings  ?  .  .  . 
A  similar  fate  met  an  act  of  another  state,  which  pro- 
vided that  a  certain  tax  should  be  imposed  only  upon 
those  taxable  inhabitants  of  a  school  district  who  had 
not  paid  a  tax  assessment  in  the  year  1871.    Even  if  a 


FUNDAMENTAL  RIGHTS  195 

tax  on  fanns  according  to  acreage  might  be  sustained, 
it  is  obvious  that  a  tax  on  farms  according  to  the  num- 
ber of  fields  into  which  they  are  divided  would  not  be 
valid.  Such  classification  would  not  treat  all  in  the  same 
class  alike,  and  would  impose  a  heavier  burden  upon  one 
farm  than  upon  another  of  the  same  size,  situation,  and 
value"  (57). 

§204.  Same:  Illustrations.  Louisiana  imposed  a  tax 
upon  persons  carrying  on  the  business  of  refining  sugar 
and  molasses,  but  excepted  from  the  tax  planters  and 
farmers  grinding  and  refining  their  own  sugar  and  mo- 
lasses. The  United  States  Supreme  Court  held  the  class- 
ification valid,  saying  that  the  discrimination  was 
founded  upon  a  reasonable  distinction  in  principle.  Gov- 
ernments frequently  exempt  producers  from  taxation  of 
the  methods  employed  to  put  their  products  upon  the 
market,  and,  refined  sugar  being  the  natural  product  of 
the  cane,  the  steps  taken  to  perfect  such  a  product  were 
incidental  to  the  original  growth  or  production  (58). 

The  greater  freedom  accorded  the  legislature  in  classi- 
fying for  taxation,  as  compared  with  classifying  for  reg- 
ulation, is  seen  by  comparing  the  above  case  with  an- 
other, in  which  an  Illinois  statute  was  held  invalid  which 
forbade  all  combinations  in  restraint  of  trade  except 
those  between  producers  of  agricultural  commodities  and 
raisers  of  live  stock.  This  discrimination  in  favor  of  pro- 
ducers as  a  matter  of  regulation  was  held  to  rest  upon 


(57)  People  v.  Mensching,  187  N.  Y.,  8,  18,  19. 

(58)  American  Sugar  Co.  v.  Louisiana,  179  U.  S.,  89,  92. 


196  CONSTITUTIONAL  LAW 

no  reasonable  basis,  despite  the  previous  case  holding  it  a 
valid  discrimination  for  purposes  of  taxation  (59). 

*'A  tax  of  two  cents  on  every  check,  regardless  of  the 
amount  for  which  it  was  drawn,  and  of  five  cents  on  a 
written  contract,  whether  it  covered  a  transaction  in- 
volving hundreds  or  thousands,  may  be  referred  to  as 
examples  of  what  has  been  done  without  serious  question 
in  the  imposition  of  excise  taxes.  A  poll  tax  does  not 
depend  ujDon  the  income  or  earning  capacity  of  the  per- 
sons subjected  to  it.  A  tax  on  carriages,  guns,  and 
watches  does  not  rest  on  the  value  of  the  subjects  taxed. 
They  are  counted,  not  appraised.  .  .  .  The  same  is 
true  of  an  excise  tax  on  legal  process,  domestic  animals, 
vocations,  and  the  like,  of  which  there  have  been  many 
instances  during  the  history  of  the  nation  and  the  dif- 
ferent states"  (60). 

§  205.  Progressive  taxation.  Property  taxes  in  this 
country,  when  levied  according  to  the  value  of  the  prop- 
erty taxed,  have  usually  been  levied  at  the  same  rate 
(disregarding  certain  small  exemptions),  irrespective  of 
the  amount  of  property  owned  by  a  single  owner.  Econ- 
omists have  frequently  urged  that  a  tax  whose  rate  in- 
creased with  the  amount  of  property  held  by  a  single 
owner  would  be  a  just  one,  because  a  large  estate  can 
afford  to  pay  a  heavier  percentage  tax  than  can  a  smaller 
one.  It  is  doubtful  whether  this  principle,  for  the  present 
at  least,  would  be  approved  as  constitutional.    In  at  least 


(59)  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.,  540. 

(60)  People  v.  Reardon,  184  N.  Y.,  431. 


FUNDAMENTAL  RIGHTS  197 

one  case  this  has  been  intimated  (61).  Probably  the 
same  would  be  held  regarding  very  large  exemptions 
from  a  general  property  tax.  A  progressive  income  tax 
prior  to  the  sixteenth  amendment  might  have  suffered 
the  same  fate,  though  this  is  more  doubtful.  The 
field  where  progressive  taxation  has  been  most  fre- 
quently applied  and  upheld  is  that  of  inheritance  taxes. 
A  differing  rate  of  taxation  here  has  been  upheld  as 
between  lineal  descendants,  collateral  relatives,  and  per- 
sons unrelated  to  the  decedent;  as  between  legacies  of 
different  amounts ;  and  even  life  estates  have  been  taxed 
at  a  different  rate  according  to  the  relation  to  the  dece- 
dent of  the  person  who  takes  the  remainder.  Exemp- 
tions as  high  as  $20,000  have  been  held  valid  (62). 
Whether  the  rate  may  constitutionally  be  increased  with 
the  size  of  the  entire  estate,  instead  of  according  to  the 
size  of  the  legacy  given,  has  not  yet  been  decided  by  the 
Federal  courts.  It  has  been  admitted  to  be  open  to 
question  there,  and  some  state  courts  have  decided  this 
method  of  progression  unconstitutional  (63).  Consider- 
ing that  the  inheritance  tax  may  be  viewed  either  as  a  tax 
upon  the  power  to  transmit  property  or  to  receive  it, 
it  would  seem  that  a  progressive  rate  upon  the  former, 
measured  by  the  entire  value  of  the  estate,  would  be  as 
valid  as  a  progressive  rate  upon  the  latter,  measured 
by  the  amount  of  each  individual  legacy. 


(61)  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  TJ.  S.,  p.  302. 

(62)  Magoun  v.  Illinois  T.  &  S.  Bank,  170  U.  S.,  283;  Billings  v. 
Illinois,  188  U.  S.,  97. 

(63)  Knowlton  v.  Moore,  178  U.  S.,  41,  77;  Black  v.  State,  113  Wis., 
205. 


19S  CONSTITUTIONAL  LAW 

§  206.  Confiscatory  taxation.  It  has  often  been  said 
that  *'tbe  power  to  tax  is  the  power  to  destroy."  Doubt- 
less wherever  property  may  be  taken  outright  by  the 
government  without  compensation,  or  where  an  occupa- 
tion may  be  prohibited  for  the  public  good,  the  power 
of  taxation  may  be  resorted  to  to  accomplish  the  same 
results.  All  of  the  cases  where  confiscatory  taxation 
have  been  upheld  are  of  this  character.  Where  the  right 
of  confiscation  or  of  prohibition  does  not  exist  upon 
other  grounds,  it  is  believed  that  taxation  may  not  be 
used  indirectly  to  accomplish  such  results  (64). 


(64)     McCray  v.  United  States,  195  U.  S.,  27,  64;  Minot  v.  Winthrop, 
162  Mass.,  113,  117. 


CHAPTER  X. 

DUE  PROCESS  AND  EQUAL  PROTECTION  OF  LAW; 
EMINENT  DOMAIN. 

§  207.  Power  of  eminent  domain  and  guarantees  re- 
specting it.  The  right  of  a  government  to  take  or  destroy 
private  property  for  the  public  welfare  has  been  uni- 
versally recognized  as  one  of  the  inherent  powers  of  sov- 
ereignty, and  has  been  exercised  by  governments  from 
time  immemorial.  This  power  has  been  commonly 
known  as  that  of  "eminent  domain"  from  the  Latin 
name  (eminens  dominium)  given  it  by  a  writer,  Grotius, 
in  the  seventeenth  century.  Writers  upon  the  subject 
have  recognized  that  the  government  owed  a  moral  obli- 
gation to  make  compensation  for  property  taken  under 
this  power,  and  civilized  governments  in  modern  times 
have  ordinarily  made  legal  provision  for  this.  The  Fed- 
eral Constitution  and  most  of  the  state  constitutions 
contain  express  provisions  making  this  moral  obligation 
legally  binding  upon  their  respective  governments.  The 
language  of  the  Federal  Constitution  is  typical  of  all 
of  these — *'Nor  shall  private  property  be  taken  for  pub- 
lic use  without  just  compensation"  (1). 

This  clause,  however,  is  a  prohibition  upon  the  Federal 
government  only,  and  there  is  no  corresponding  clause 


(1)     Amend.  V. 

199 


200  CONSTITUTIONAL  LAW. 

in  the  Constitution  expressly  forbidding  the  states  to 
take  private  property  without  compensation.  'When  the 
Fourteenth  Amendment  was  adopted  it  forbade  the  states 
to  "take  property  without  due  process  of  law."  In 
1896  the  United  States  Supreme  Court  decided  that  the 
taking  by  a  state  of  private  property  for  the  private  use 
of  another  was  not  due  process  of  law,  and  hence  for- 
bidden by  the  Fourteenth  Amendment  (2). 

The  next  year  it  was  held  that  it  was  also  not  due 
process  of  law  to  take  private  property  for  public  use 
without  just  compensation.  **Dne  process  of  law  as  ap- 
plied to  judicial  proceedings  instituted  for  the  taking  of 
private  property  for  public  use  means,  therefore,  such 
process  as  recogTiizes  the  right  of  the  owner  to  be  com- 
pensated if  his  property  be  wrested  from  him  and  trans- 
ferred to  the  public.  The  mere  form  of  the  proceeding 
instituted  against  the  owner,  even  if  he  be  admitted  to 
defend,  cannot  convert  the  process  used  into  due  process 
of  law,  if  the  necessary  result  be  to  deprive  him  of  his 
property  without  compensation"  (3).  By  this  interpre- 
tation of  the  Fourteenth  Amendment  all  of  the  states,  as 
well  as  the  United  States,  become  legally  obliged  by  the 
Constitution  to  make  compensation  for  private  property 
taken  for  public  use. 

§  208.  Various  interferences  with  property  dis- 
tinguished from  eminent  domain.  In  a  number  of  in- 
stances property  may  be  rendered  valueless,  destroyed, 
or  even  taken  'for  governmental  use  without  this  action 


(2)  Missouri  Pacific  Railway  Co.  v.  Nebraska,  164  U.  S.,  403. 

(3)  C.  B.  &  Q.  Railway  v.  Chicago,  166  U.  S.,  226,  236-37. 


FUNDAMENTAL  RIGHTS  201 

being  considered  an  exercise  of  the  power  of  eminent 
domain,  for  which  compensation  must  be  made.  The 
use  of  property  may  be  so  regulated  as  to  make  it  of 
little  value  to  its  owner,  as  where  the  owner  of  a  brewery 
is  forbidden  to  manufacture  beer  by  a  state  prohibition 
law.  The  keeping  of  some  kinds  of  property,  like  fire 
works,  may  be  absolutely  forbidden ;  diseased  cattle  may 
be  destroyed  against  the  will  of  the  owner;  property 
may  be  destroyed  to  prevent  the  spread  of  a  conflagra- 
ition;  and  property  upon  the  scene  of  active  hostilities 
may  be  seized  and  used  by  military  officers.  In  none  of 
'these  cases  is  compensation  required,  the  first  three  be- 
ing justified  under  the  regulative  powers  of  the  state, 
the  fourth  under  the  right  to  preserve  other  property 
of  much  greater  value  in  the  face  of  a  pressing  danger; 
and  the  last  under  the  war  power. 

§  209.  What  is  a  public  use?  The  power  of  eminent 
domain  can  be  exercised  only  in  taking  property  for  pub- 
lic use.  To  take  property  from  A  and  give  it  to  B  for 
private  purposes  is  mere  confiscation,  and  a  taking  of 
property  without  due  process  of  law.  This  is  illustrated 
by  a  Nebraska  case,  where  the  state  vainly  attempted  to 
compel  a  railroad  company  to  permit  private  persons 
to  erect  private  grain  elevators  upon  its  right  of  way  (4). 

Perhaps  the  leading  case  upon  the  question  of  what 
constitutes  a  public  use  for  the  purpose  of  eminent  do- 
main is  Talbot  v.  Hudson.  A  Massachusetts  statute  had 
previously  authorized  riparian  owners  having  good  mill 
sites  to  erect  dams  for  the  purpose  of  providing  water 


(4)     Missouri  Pacific  Railroad  Co.  v.  Nebraska,  164  U.  S.,  40i 


202  CONSTITUTIONAL  LAW 

power,  and  it  authorized  the  necessary  flooding  of  adja- 
cent lands  in  consequence,  upon  making  compensation 
for  such  damage.  Under  this  statute  a  large  dam  and 
valuable  mill  buildings  had  been  erected  upon  the  Con- 
cord river  and  hundreds  of  acres  of  low-lying  meadow 
land  had  been  flooded.  "When  this  statute  was  enacted 
the  creation  of  water  power  was  of  more  public  utility 
in  the  state  than  was  the  preservation  of  these  low  lands. 
Later,  with  the  increase  of  population,  the  use  of  these 
lands  became  relatively  more  valuable  than  the  water 
power,  and  another  statute  required  the  taking  down  of 
the  dam  upon  payment  of  compensation  for  the  ensuing 
loss  to  the  mill  owner.  The  legislation  was  upheld,  the 
court  saying: 

''In  many  cases,  there  can  be  no  difficulty  in  determin- 
ing whether  an  appropriation  of  property  is  for  a  public 
or  private  use.  .  .  .  But  there  are  intermediate  cases 
where  public  and  private  interests  are  blended  together, 
in  which  it  becomes  more  difficult  to  decide  within  which 
of  the  two  classes  they  may  be  properly  said  to  fall. 
There  is  no  fixed  rule  or  standard  by  which  such  cases 
can  be  tried  and  determined.  Each  must  necessarily  de- 
pend upon  its  own  peculiar  circumstances.  In  the  pres- 
ent case  there  can  be  no  doubt  that  every  owner  of 
meadow  land  bordering  on  these  rivers  will  be  directly 
benefited  to  a  greater  or  less  extent  by  the  reduction  of 
the  height  of  the  plaintiff's  dam.  The  act  is,  therefore, 
in  a  certain  sense  for  a  private  use,  and  enures  directly 
to  the  individual  advantage  of  such  owners.  But  this  is 
by  no  means  a  decisive  test  of  its  validity.    Many  enter- 


FUNDAMENTAL  RIGHTS  203 

prises  of  the  highest  public  utility  are  productive  of 
great  and  immediate  benefits  to  individuals.  .  .  . 
The  act  would  stand  on  a  different  ground,  if  it  appeared 
that  only  a  very  few  individuals  or  a  small  adjacent  ter- 
ritory were  to  be  benefited  by  the  taking  of  private  prop- 
erty.   But  such  is  not  the  case  here.     .     .     . 

''It  has  never  been  deemed  essential  that  the  entire 
community  or  any  considerable  portion  of  it  should  di- 
rectly enjoy  or  participate  in  an  improvement  or  enter- 
prise, in  order  to  constitute  a  public  use,  within  the  true 
meaning  of  these  words  as  used  in  the  constitution.  Such 
an  interpretation  would  greatly  narrow  and  cripple  the 
authority  of  the  legislature,  so  as  to  deprive  it  of  the 
power  of  exerting  a  material  and  beneficial  influence  on 
the  welfare  and  prosperity  of  the  state.  In  a  broad  and 
comprehensive  view,  such  as  has  been  heretofore  taken  of 
the  construction  of  this  clause  of  the  declaration  of 
rights,  everything  which  tends  to  enlarge  the  resources, 
increase  the  industrial  energies,  and  promote  the  pro- 
ductive power  of  any  considerable  number  of  the  inhab- 
itants of  a  section  of  the  state,  or  which  leads  to  the 
growth  of  towns  and  the  creation  of  new  sources  for  the 
employment  of  private  capital  and  labor,  indirectly  con- 
ributes  to  the  general  welfare  and  to  the  prosperity  of 
the  whole  community '^  (5). 

§  210.  Same:  Illustratians.  In  the  arid  parts  of  the 
United  States  individual  land  owners  may  be  authorized 
to  exercise  the  power  of  eminent  domain  in  securing  a 
right  of  way  for  ditches  across  the  lands  of  their  neigh- 


(5)     Talbot  V.  Hudson,  16  Gray   (Mass.),  417,  423,  425. 


204  CONSTITUTIONAL  LAW 

bors,  where  this  is  necessary  to  enable  them  to  irrigate 
their  fields.  In  parts  of  the  country  where  no  such  neces- 
sity exists,  such  a  statute  would  doubtless  not  be  valid 
(6).  Similarly,  a  statute  may  authorize  the  condenma- 
tion  of  land  in  an  arid  district  by  a  water  company  for 
reservoirs  and  ditches  used  by  it  in  supplying  water  for 
irrigation  in  the  neighborhood  (7). 

Those  public  purposes  for  which  public  money  may 
be  raised  by  taxation  will  equally  permit  the  exercise  of 
the  power  of  eminent  domain.  Among  these  may  be 
mentioned  ''the  erection  of  memorial  halls,  monuments, 
statues,  gates  or  archways,  celebrations,  the  publication 
of  town  histories,  parks,  roads  leading  to  points  of  fine 
natural  scenery,  decorations  upon  public  buildings,  or 
other  public  ornaments  or  embellishments,  designed 
merely  to  promote  the  general  welfare  either  by  pro- 
viding for  fresh  air  or  recreation,  or  by  educating  the 
public  taste,  or  by  inspiring  sentiments  of  patriotism  or 
of  respect  for  the  memory  of  worthy  individuals"  (8). 
The  power  of  eminent  domain  may  be  given  to  any  enter- 
prise that  discharges  public  functions,  like  railway,  canal, 
telegraph  and  telephone,  water,  gas,  or  electric  com- 
panies; perhaps  subject  to  the  proviso  that  the  proper 
discharge  of  its  public  duties  requires  the  ownership  of 
property  so  located  that  it  might  not  be  readily  bought 
by  private  agreement.  A  hotel,  for  instance,  must  serve 
the  public,  but  ordinarily  could  not  be  given  the  power 


(6)  Clark  v.  Nash,  198  U.  S.,  361. 

(7)  Fall  Brook  Irrigation  District  v.  Bradley,  1G4  U.  S.,  112. 

(8)  Kingman  v.  Brockton,  153  Mass.,  p.  256. 


FUNDAMENTAL  RIGHTS  205 

of  eminent  domain,  probably  because  there  is  so  great  a 
choice  of  convenient  locations  that  private  agreement 
will  afford  it  a  proper  site. 

It  will  be  seen,  from  comparing  this  discussion  of  a 
public  use  for  the  purpose  of  eminent  domain  with  the 
discussion  of  what  is  a  public  purpose  for  taxation,  that 
probably  the  public  objects  that  may  be  assisted  by  taxa- 
tion are  somewhat  more  limited  than  those  that  may  ex- 
ercise the  power  of  eminent  domain.  This  difference  is 
due  to  the  greater  likelihood  of  abuse  in  the  former  case. 
Compensation  must  be  made  for  what  is  taken  by  eminent 
domain,  but  taxes  are  exacted  without  any  definite  re- 
turn for  them. 

§  211.  Same:  Esthetic  purposes.  There  has  been  some 
difference  of  opinion  as  to  whether  the  power  of  eminent 
domain  may  be  used  for  purely  esthetic  purposes.  The 
earlier  decisions  inclined  to  deny  this.  In  Connecticut 
it  was  held  that  harbor  lines  could  not  be  adjusted  by 
this  power  so  as  to  preserve  a  fine  view  of  a  beautiful 
public  structure  (9).  Some  years  later  it  was  held  in 
Massachusetts  that  the  state  might  forbid  the  erection 
of  buildings  beyond  a  certain  height  about  one  of  the 
city  squares,  in  order  to  preserve  its  architectural  sym- 
metry for  the  benefit  of  the  public,  upon  making  compen- 
sation to  the  land  owner  whose  rights  were  thus 
abridged  (10). 

§  212.  Legislative  discretion.  Whenever  property  is 
taken  by  the  state  for  a  purpose  that  really  is  public,  the 


(9)  Farist  Steel   Co,  v.  Bridgeport,   60  Conn.,  278. 

(10)  Attorney  General  v.  Williams,  174  Mass.,  476. 


Vol.  XII— 15 


306  CONSTITUTIONAL  LAW 

necessity  and  convenience  of  doing  it  are  considerations 
wholly  for  the  legislature.  There  is  no  rule  limiting  the 
exercise  of  this  power  to  cases  of  necessity.  Similarly, 
if  the  purpose  be  really  public,  the  amount  of  property 
to  be  taken,  and  the  estate  in  it  to  be  condemned  are  also 
legislative  questions  only.  If  property  is  taken  for  a 
park,  for  instance,  the  legislature  may  take  ten  acres  or 
one  thousand  acres,  providing  it  be  all  taken  in  good 
faith  for  park  purposes.  If  land  is  condemned  for  a 
street  the  legislature  may  take  a  mere  right  of  way  for 
the  street,  or  it  may  take  the  entire  fee  in  the  land.  "Where 
the  power  is  delegated  to  some  corporation  or  municipal- 
ity and  nothing  is  expressly  stated  about  the  estate  to 
be  taken,  the  power  is  usually  strictly  construed  so  that 
only  such  an  estate  may  be  taken  as  is  necessary  for  the 
purposes  intended,  but  this  is  entirely  a  matter  of  con- 
struction and  not  of  constitutional  power  (11).  Some 
states  have  express  constitutional  restrictions  of  their 
own  limiting  the  above  rules. 

§  213.  What  kind  of  property  may  be  taken?  It  is  be- 
lieved that  any  kind  of  property  really  needed  for  a  pub- 
lic purpose  may  be  taken  under  the  power  of  eminent 
domain.  Contracts  may  be  so  taken,  as  where  a  water 
company  whose  property  is  taken  by  eminent  domain  has 
contracts  to  supply  water  to  individuals  and  municipali- 
ties. These  contracts  may  be  taken  by  the  state,  and  if 
taken  must  be  paid  for  (12).  The  franchises  of  a  corpo- 
ration may  be  taken.    A  corporation  was  chartered  by 


(11)  Fairchild  v.  St.  Paul,  46  Mian.,  540. 

(12)  Long  Island  Water  Co.  v.  Brooklyn,  166  U.  S.,  685. 


FUNDAMENTAL  RIGHTS  207 

Pennsylvania  to  build  locks  in  a  river,  with  a  franchise 
to  charge  tolls  for  their  use.  It  was  held  that  when  the 
United  States  appropriated  these  locks  under  its  com- 
mercial powers,  it  must  pay  for  the  franchise  to  take 
tolls  (13).  Where  a  city  has  granted  an  exclusive  fran- 
chise for  a  term  of  years,  making  thereby  a  contract 
which  the  Constitution  forbids  it  to  impair,  it  may  yet 
take  this  corporate  charter  bj^  its  power  of  eminent  do- 
main, upon  the  payment  of  compensation  therefor.  It 
has  been  suggested  that  the  state  could  not  take  corpo- 
rate franchises  from  one  corporation,  merely  to  confer 
them  upon  another  similar  corporation,  though  both 
were  exercising  public  functions.  However  this  may  be, 
the  state  may  take  the  franchise  from  a  corporation  by 
eminent  domain  and  exercise  the  functions  of  the  corpo- 
ration itself,  as  where  a  water  works  property  is  con- 
demned and  the  business  conducted  thereafter  by  the 
public  (14). 

§  214.  What  amounts  to  a  taking  of  property?  Sup- 
pose A  owns  a  piece  of  land  on  a  river  bank  in  a  city. 
On  one  side  of  his  land  is  a  street  and  on  the  other  side 
he  has  a  right  of  way  across  the  adjoining  land  of  X. 
Each  of  the  following  cases  raises  questions  whether  A's 
property  has  been  taken  so  that  the  public  must  com- 
pensate him: 

(a)  The  entire  estate  in  part  of  the  land  is  taken  for  a 
public  building. 


(13)  Monongahela  Co.  v.  United  States,  148  U.  S.,  312. 

(14)  Long  Island  Water  Co.  v.  Brooklyn,  166  U.  S.,  685,  694. 


208  CONSTITUTIONAL  LA^ 

(b)  A  right  of  way  is  taken  across  the  land  for  a  new 
street. 

(c)  X's  adjoining  land  is  taken  for  a  public  building, 
which  destroys  A's  right  of  way  across  it. 

(d)  A's  access  to  the  river  is  cut  off  by  the  abutments 
of  a  new  bridge. 

(e)  The  river  is  widened  so  that  it  flows  over  part  of 
A's  land. 

(f)  The  river  is  dammed  so  that  the  water  backs  up 
on  A's  land,  but  he  is  at  liberty  to  build  embankments  and 
keep  it  off. 

(g)  A  steam  railroad  crosses  the  adjoining  land  and 
the  noises  and  smoke  of  its  operation  greatly  diminish  the 
value  of  A's  land. 

(h)  A's  access  to  the  navigable  channel  of  the  river  is 
cut  off  by  a  pier  placed  in  the  river  to  improve 
navigation. 

(i)  The  street  in  front  of  A's  land  is  graded  up  so  as 
to  make  access  to  it  very  difficult. 

(j)  An  elevated  street  railroad  is  put  in  the  street, 
which  interferes  with  A's  access,  light,  and  air. 

(k).  A  steam  railroad  for  through  traffic  is  laid  in  the 
street,  which  likewise  interferes  with  A's  access,  light, 
and  air. 

§  215.  Physical  occupation  of  property.  As  regards 
cases  (a),  (b),  and  (c)  (§214)  there  can  be  no  doubt  prop- 
erty is  taken,  the  only  difference  being  in  the  quality  of 
the  interest  taken.  A  right  of  way  is  a  recognized  sub- 
ject of  property,  as  much  as  an  estate  in  fee,  and  com- 
pensation must  be  made  for  both.    Another  recognized 


FUNDAMENTAL  RIGHTS  209 

incident  of  property  is  a  riparian  owner's  right  of  access 
to  the  stream.  When  the  public  takes  this  from  him,  as 
in  (d),  above,  his  property  is  taken.  In  case  (e),  the 
public  has  taken  from  A  the  right  to  occupy  part  of  his 
land  permanently  with  the  water  of  the  river  which  has 
been  widened.  Such  a  right  as  this  in  the  land  of  another, 
called  an  easement,  is  also  a  well-recognized  separable 
property  right  by  the  common  law  and  so  A  must  be 
paid  for  it.  In  all  of  these  cases  it  will  be  noticed  that 
A's  rights  have  been  taken  from  him  in  such  a  fashion 
that  he  cannot  legally  avail  himself  of  them  in  any  way. 
Rights  he  once  had  to  the  occupation  or  use  of  his  prop- 
erty are  now  being  enjoyed  by  the  public.  Up  to  this 
point  there  is  no  controversy  about  the  matter. 

§  216.  Substantial  intrusion  of  tangible  material. 
Cases  (f)  and  (g)  (§214)  are  somewhat  different.  No 
right  is  claimed  by  the  public  to  keep  water  on  A's  land, 
if  A  chooses  to  dike  it  off;  or  to  make  noises  or  cast  soot 
on  A's  land,  if  A  can  erect  some  barrier  that  will  prevent 
these  effects.  All  that  is  claimed  is  a  right  to  be  free 
from  suit  for  injuring  A's  land  as  incidental  to  acts  done 
elsewhere.  The  crude  earlier  conceptions  of  the  common 
law  undoubtedly  regarded  these  acts  as  injuries  to  prop- 
erty, rather  than  as  taking  it,  and  hence  they  fell  outside 
the  constitutional  prohibition.  In  the  leading  case  of 
Pumpelly  v.  Green  Bay  Company  (15),  decided  in  1871, 
it  was  held  that  a  substantial  flooding  of  land  by  water 
amounted  to  a  taking  of  it  for  which  compensation  must 
be  made.     The  court  said:    *' Where  real  estate  is  ac- 


(15)     13  Wall.,  166. 


210  CONSTITUTIONAL  LAW 

tually  invaded  by  superinduced  additions  of  water,  earth, 
sand  or  other  material,  or  by  having  any  artificial  struc- 
ture placed  on  it,  so  as  to  effectually  destroy  or  impair 
its  usefulness,  it  is  a  taking,  within  the  meaning  of  the 
Constitution."  This  case  has  been  generally  followed 
since  in  this  country.  Another  case  decided  about  the 
same  time  that  had  much  effect  in  settling  the  law  was 
one  where  a  railroad  had  cut  through  a  ridge  of  land 
which  had  protected  the  plaintiff's  land  from  the  fresh- 
ets of  a  neighboring  stream.  Afterwards,  water  came 
through  this  cut  at  flood-time,  depositing  gravel  upon 
plaintiff's  farm  and  washing  away  his  soil.  This  was 
held  to  amount  to  a  taking  of  the  plaintiff's  property,  his 
natural  right  to  be  free  from  such  a  change  in  the  sur- 
face of  the  earth,  and  compensation  was  required  (16). 

§  217.  Noise  and  pollution  of  atmosphere.  On  the  other 
hand,  it  is  generally  held  that  noise  and  the  pollution  of 
the  atmosphere,  as  by  the  operation  of  a  railroad,  do 
not  constitute  a  taking  of  property  for  which  compensa- 
tion must  be  made  (17).  The  ringing  of  a  bell,  which  has 
been  previously  enjoined  as  a  nuisance,  may  be  legalized 
by  the  legislature,  without  compensation,  though  it 
causes  much  discomfort  to  property  owners  in  the  vicinity 
(18).  In  these  cases,  there  being  no  gross  physical  in- 
vasion of  the  area  of  the  plaintiff's  proi^erty,  it  has  not 
been  treated  as  a  taking,  although  it  may  be  shown  that 
under  a  scientific  classification  of  property  rights  dam- 


(16)  Eaton  v.  Boston,  etc.  Railroad,  51  N.  H.,  504. 

(17)  Beseman  v.  Pennsylvania  Railroad,  50  N.  J.  L.,  235. 

(18)  Sawyer  v.  Davis,  136  Mass.,  239. 


FUNDAMENTAL  RIGHTS  211 

age  done  by  noise  or  smoke  is  essentially  similar  to  that 
done  by  water. 

§  218.  Improvement  of  navigation.  In  case  (b)  (§214) 
A's  right  of  access  to  the  stream  has  been  interfered 
with,  but  only  for  the  purpose  of  improving  the  river  for 
purposes  of  navigation.  Riparian  rights  are  held  sub- 
ject to  the  paramount  right  of  the  public  in  the  naviga- 
bility of  streams,  and  must  yield  to  improvements  in 
the  exercise  of  this  public  right.  So,  in  a  case  where 
Congress  improved  a  navigable  river  by  building  in  it, 
on  submerged  land  in  front  of  plaintiff's  shore  line,  a 
pier  that  wholly  cut  plaintiff  off  from  access  to  the 
channel  of  the  river,  it  was  held  he  could  claim  no  com- 
pensation on  the  theory  that  his  property  was  taken  (19). 

§  219.  Changes  in  public  streets.  Cases  (i),  (j),  (k), 
(§214)  involve  the  difficult  question  of  what  property 
rights  an  abutting  owner  has  in  a  public  street.  It  was 
early  decided  that  any  change  of  grade  of  a  public  street, 
whether  by  raising  it  or  lowering  it,  did  not  amount  to  a 
taking  of  abutting  property,  no  matter  how  much  the 
latter  might  be  damaged  as  a  result.  The  streets  were 
intended  for  public  traffic,  and  anything  that  improved 
them  for  this  purpose,  without  actually  invading  the 
boundaries  of  abutting  property  was  within  the  rights 
of  the  public,  just  like  improvements  upon  navigable 
rivers  (§  218).  About  1880  there  began  in  New  York  a 
remarkable  litigation  over  the  construction  of  the  first 
elevated  street  railroads.  These  stractures  in  the  streets 
of  New  York  city  diminished  the  light  and  air  of  abutting 


(19)     Scrantou  v.  Wheeler,  179  U.  S.,  141. 


212  CONSTITUTIONAL  LAW 

property,  interfered  with  access  to  it,  and  also  diminished 
its  value  by  the  noise  and  dirt  of  the  trains.  Abutting 
property  owners  attempted  to  compel  the  elevated  com- 
panies to  pay  for  the  damage  thus  done  upon  the  theory 
that  they  had  some  property  rights  in  the  streets  that 
were  taken  by  the  erection  of  the  elevated  structure. 
The  New  York  courts  finally  decided  that  the  abutters 
had  such  property  rights  for  the  taking  of  which  they 
were  entitled  to  compensation.  The  theory  of  these  rights 
has  been  thus  stated  by  the  New  York  court: 

**It  has  now  been  decided  that,  although  the  land  itself 
was  not  taken,  yet  the  abutting  owner,  by  reason  of  his 
situation,  had  a  kind  of  property  in  the  public  street  for 
the  purpose  of  giving  to  such  land  facilities  of  light,  of 
air,  and  of  access  from  such  street.  These  rights  of  ob- 
taining for  the  adjacent  lands  facilities  of  light,  etc., 
were  called  easements,  and  were  held  to  be  appurtenant 
to  the  land  which  fronted  on  the  public  street.  These 
easements  were  decided  to  be  property,  and  protected  by 
the  constitution  from  being  taken  without  just  compen- 
sation. It  was  held  that  the  defendants,  by  the  erection 
of  their  structure  and  the  operation  of  their  trains, 
interfered  with  the  beneficial  enjoyment  of  these  ease- 
ments by  the  adjacent  land-owner,  and  in  law  took  a  por- 
tion of  them.  By  this  mode  of  reasoning,  the  difficulty 
of  regarding  the  whole  damage  done  to  the  adjacent 
owner  as  consequential  only  (because  none  of  his  prop- 
erty was  taken),  and,  therefore,  not  collectible  from  the 
defendants,  was  overcome.  The  interference  with  these 
easements  became  a  taking  of  them  pro  tanto,  and  their 


FUNDAMENTAL  RIGHTS  213 

value  was  to  be  paid  for,  and  in  addition  the  damage  done 
the  remaining  and  adjoining  land  by  reason  of  the  ta- 
king was  also  to  be  paid  for,  and  this  damage  was  in 
reality  the  one  great  injury  which  owners  sustained  from 
the  building  and  operation  of  the  defendant's  road"  (20). 

These  so-called  easements  of  light,  air,  and  access,  are 
wholly  subject  to  the  right  of  the  public  to  improve  the 
street  for  the  purpose  of  legitimate  street  traffic.  For 
instance,  if  a  city  had  erected  a  public  viaduct  in  the 
street,  to  carry  it  up  to  a  higher  grade,  and  the  injury  to 
abutting  owners  had  been  just  as  great  as  in  the  case  of 
the  elevated  railway,  the  abutters  would  have  had  no 
remedy  (21).  A  striking  illustration  of  this  occurred 
in  Buffalo,  N.  Y.  A  railroad  was  authorized  to  build 
an  embankment  six  feet  high  in  the  middle  of  a  street, 
which  was  held  to  take  the  abutting  owners*  easement 
of  access,  so  that  they  must  be  paid  for  it.  The  streets 
crossing  this  one  had  to  be  graded  up  to  the  top  of  the 
embankment  to  get  across,  and  the  abutters  on  these 
streets  were  not  allowed  to  recover  because  this  gra- 
ding was  done  to  change  the  level  of  the  street  for  street 
purposes,  while  the  first  one  was  not  (22). 

§  220.    What  are  legitimate  public  uses  of  streets? 

Evidently  the  New  York  elevated  railroad  cases  depend 
upon  the  proposition  that  the  occupation  of  the  street 
by  an  elevated  street  railroad  is  not  a  legitimate  use  of 


(20)  Bohm  V.  Metropolitan  Railway  Co.,  129  N.  Y.,  576,  587-88. 

(21)  Sauer  v.  New  York,  206  U.  S.,  536. 

(22)  Reining  v.  Railroad,  128  N.  Y.,  157;  Rauenstein  ▼.  Railroad, 
136  N.  Y.,  528. 


214  CONSTITUTIONAL  LAW 

a  street  for  the  purposes  of  public  street  traffic.  This 
view  has  been  disputed  in  some  states  on  the  ground  that 
if  the  public  needs  require  such  a  road  to  accommodate 
local  traffic  in  a  city,  it  is  as  much  a  proper  use  of  a  street 
as  are  surface  street  car  lines,  which  are  usually  per- 
mitted without  making  compensation  (23). 

As  regards  the  use  of  streets  for  various  common  in- 
cidental purposes,  like  drains,  gas  and  water  pipes,  lamp 
posts,  telegraph  and  telephone  posts,  street  railways,  and 
steam  railways,  the  test  commonly  applied  is  whether 
the  use  is  one  fairly  incidental  to  local  traffic  or  not. 
"Where  telegraph  or  telephone  poles,  or  steam  railways, 
actually  interfere  with  the  use  of  a  street  by  an  abutter  it 
is  commonly  held  that  compensation  must  be  made ;  for 
the  other  purposes  mentioned  above  the  contrary  is  usu- 
ally held.  Where  the  abutting  owner  has  conveyed  to  the 
public  only  an  easement  for  street  purposes,  but  has  re- 
tained the  fee,  a  number  of  states  hold  that  he  must  be 
compensated  for  the  occupation  of  the  street  by  tele- 
graph or  telephone  poles  or  by  a  steam  railroad,  whether 
his  use  of  the  street  is  affected  or  not,  on  the  ground  that 
these  structures  are  impairments  of  the  abutter's  re- 
served interest.  Upon  all  these  points  there  are  many 
minor  differences  of  opinion  (24). 

§  221.  Compensation  in  money.  In  the  case  where  a 
tract  of  land  or  other  piece  of  proj^erty  is  taken,  compen- 
sation must  be  made  in  money  at  the  fair  market  value 
of  the  property.     The  money  need  not  be  paid  at  the 


(23)  Garrett  v.  Elevated  Railway,  79  Md.,  277. 

(24)  Randolph,  Eminent  Domain,  §§395-416. 


FUNDAMENTAL  RIGHTS  215 

time  possession  is  taken  of  the  property,  if  a  certain 
method  of  obtaining  it  within  a  reasonable  time  there- 
after is  provided.  In  deciding  what  is  a  fair  market  value 
of  property,  not  only  its  present  use  is  to  be  considered 
but  its  adaptability  to  other  uses  that  may  reasonably  be 
made  of  it.  Thus,  a  site  on  a  river  advantageously  located 
for  a  log  boom,  or  land  naturally  adapted  to  the  purposes 
of  a  reservoir  site  should  be  valued  with  reference  to 
these  possible  uses,  if  there  is  a  reasonable  prospect  of 
realizing  them  (25). 

§  222.  Compensation  in  benefits.  Although  it  is  usu- 
ally said  that  an  owner  may  not  be  required  to  accept 
anything  but  money  as  compensation  for  property  taken, 
yet  by  the  operation  of  a  rule  commonly  applied  in  ascer- 
taining the  amount  of  compensation,  he  may  virtually  be 
required  to  take  part  or  all  of  his  compensation  in  the 
shape  of  benefits  to  his  remaining  property,  if  part  only 
of  a  single  tract  be  taken.  A  concrete  case  will  illustrate 
the  operation  of  this  rule.  Suppose  a  railroad  crosses 
A's  farm.  The  value  of  the  farm  before  the  crossing 
was  $5,000,  and  the  land  taken  is  fairly  worth  $500.  If 
the  severance  of  the  part  taken  by  the  railroad,  or  the 
construction  or  the  operation  of  the  railroad  will  still 
further  diminish  the  value  of  what  is  left  by  $500,  the 
owner  is  entitled  to  be  paid  a  full  $1,000  as  the  total  in- 
jury done.  On  the  other  hand,  if  the  existence  or  con- 
struction or  operation  of  the  railroad  there  has,  by 
improving  access  to  the  market  or  draining  a  swamp,  in- 


(25)     Boom  Company  v.  Patterson,  98  U.  S.,  403;  San  Diego  Co.  v, 
^eale,  78  Cal.,  63. 


216  CONSTITUTIONAL  LAW 

creased  the  value  of  the  remainder  to  the  owner  by  $500 
this  may  be  deducted  from  the  value  of  the  land  taken, 
so  that  nothing  need  be  paid  (26).  Some  states,  by 
statute  or  constitution,  provide  that  the  part  actually 
taken  must  be  paid  for  in  money  without  deduction  for 
benefits ;  and  that  benefits  to  the  remainder  can  be  set  off 
only  against  injuries  to  the  remainder;  but  the  United 
State  Constitution  does  not  require  this.  The  result 
is  that  if  an  owner  has  two  separate  tracts  of  land,  not 
united  in  a  single  use,  and  one  of  them  is  taken  by  the 
public  to  the  consequential  injury  of  the  other  tract,  the 
owner  can  recover  nothing  for  this  latter  injury.  If, 
however,  the  two  tracts  were  united  in  some  common  use, 
so  that  they  formed  for  business  purposes  a  single  prop- 
erty, the  owner  could  recover  the  value  of  what  was 
taken,  plus  the  injury  to  what  was  left,  minus  the  benefits 
to  what  was  left  (27). 

§  223.  Preliminary  surveys  before  compensation.  To 
justify  an  entry  upon  land  to  be  taken  by  eminent  domain 
proceedings,  a  statute  must  be  in  existence  at  the  time 
providing  that  compensation  shall  be  made  without  un- 
reasonable delay.  If  such  a  statute  is  in  force,  it  is  justi- 
fiable to  enter  the  land  for  the  purpose  of  preliminary 
surveys  before  compensation  is  made,  and  even  before 
actual  proceedings  have  been  begun  to  condemn  the  land. 
If  actual  damage  is  done  to  the  property  in  the  course  of 
these  surveys  the  owner  has  the  ordinary  right  of  action 
therefor,  but  the  mere  technical  trespass  for  which  an  ac- 


(26)  Bauman  v.  Ross,  167  U.  S.,  548. 

(27)  White  v.  Elevated  Railway,  154  111.,  620. 


FUNDAMENTAL  RIGHTS  217 

tion  could  ordinarily  be  brought  without  showing  dam- 
age is  justified  in  the  course  of  such  proceedings  taken 
in  good  faith. 

§  224.  Liability  for  dama^ng  property.  As  has  been 
seen  above  (§§217,  219),  the  constitutional  requirements 
of  compensation  for  property  taken  do  not  include  prop- 
erty that  is  merely  damaged.  The  injustice  frequently 
done  where  property  is  legally  only  damaged  has  led 
nearly  one-half  of  our  states  to  add  to  their  constitutions 
a  clause  requiring  compensation  for  property  damaged  as 
well  as  taken.  Under  this  provision  the  state  and  its 
agents  are  liable  for  any  physical  injury  to  property 
which  would  be  actionable  if  done  by  a  private  individual 
in  the  position  of  the  state  or  its  agents.  For  instance, 
a  private  land  owner  cannot  legally  maintain  a  nuisance 
upon  his  premises,  and  the  public  must  likewise  refrain 
from  doing  this  upon  its  streets  or  other  property,  unless 
it  makes  compensation  therefor.  It  cannot  interfere  with 
an  abutter's  easement  of  light,  air,  and  access  upon  a 
public  street,  without  compensation,  any  more  than  could 
the  owner  of  land  over  which  there  was  a  private  right 
of  way  with  similar  easements.  On  the  other  hand,  just 
as  a  private  owner  is  not  liable  to  his  neighbor  for  put- 
ting up  an  unsightly  building  that  diminishes  the  value 
of  his  neighbor's  land,  so  the  public  is  not  liable  for  dam- 
age caused  to  neighboring  property  by  the  building  of 
a  jail  or  police  station,  or  for  obstructing  the  light  of 
windows  that  do  not  open  on  a  public  way  (28). 


(28)     Rigney  v.  Chicago,  102  lU.,  64;  Chicago  v.  Taylor,  125  U.  S., 
161. 


21S  CONSTITUTIONAL  LAW 

§  225.  Condemnation  proceedings.  The  exercise  of  tEe 
power  of  eminent  domain  must  be  authorized  by  the  leg- 
ishiture  before  any  proceedings  to  condemn  land  are 
taken,  and  when  the  statutory  proceedings  are  substan- 
tially followed  the  land  owner  is  usually  confined  to  the 
remedy  provided  in  these  proceedings.  Where  attempts 
are  made  to  use  the  land  without  taking  such  proceedings, 
the  owner  may  ordinarily  secure  an  injunction  against 
further  disturbance,  until  proper  proceedings  are  taken, 
if  the  work  is  not  very  far  advanced ;  or,  where  the  work 
is  so  far  advanced  that  it  would  be  a  hardship  on  the 
public  to  stop  it  at  this  point,  an  injunction  may  be 
awarded  unless  the  aggressor  will  pay  at  once  what  the 
court  finds  to  be  a  fair  value  of  the  property  (29). 

Proceedings  to  condemn  land,  being  neither  criminal 
cases  nor  suits  at  law  or  in  equity,  within  the  meaning  of 
the  provisions  for  jury  trial  in  our  constitutions,  need 
not  be  conducted  before  a  jury  nor  even  under  the  direc- 
tion of  a  court  (30).  They  are  administrative  suits,  as 
explained  in  §138,  above,  and  all  that  is  required  is  a  fair 
hearing  before  some  honest  tribunal  upon  the  questions 
involved. 


(29)  Galway  v.  Elevated  Railway,  128  N.  Y.,  132. 

(30)  Bauman  v.  Ross,  1C7  U.  S.,  548. 


CHAPTER  XI. 

LAWS  IMPAIRING  OBLIGATIONS  OF  CONTRACTS. 

§226.  Constitutional  prohibitions.  During  the  dis- 
orders consequent  upon  the  Revolution  and  the  exhausted 
state  of  public  and  private  credit  during  the  years  im- 
mediately after,  a  number  of  states  had  passed  laws 
altering  or  discharging  private  contracts,  greatly  to  the 
disturbance  of  commerce  and  credit.  With  very  little 
discussion,  therefore,  the  Philadelphia  convention  in- 
serted in  the  proposed  Constitution  the  clause:  "No 
state  shall  pass  any  law  impairing  the  obligations  of 
contracts"  (1).  A  proposal  that  a  similar  prohibition 
should  be  placed  upon  the  United  States  government  was 
not  even  seconded  in  the  convention.  Probably  the  fra- 
mers  of  the  Constitution  thought  that  the  national  govern- 
ment, subject  to  the  possible  hazards  and  burdens  of  war, 
could  not  be  as  safely  fettered  in  this  respect  as  might 
the  local  state  governments  relieved  of  the  duty  of  meet- 
ing supreme  emergencies.  That  the  United  States  is  not 
forbidden  to  impair  the  obligations  of  contracts  does  not 
mean,  however,  that  it  may  abrogate  at  pleasure  such  as 
are  subject  to  its  jurisdiction.  Contracts  are  property 
(2),  and  the  Fifth  Amendment  forbids  the  United  States 
to  take  property  without  due  process  of  law.    Any  act  of 


(1)  Art.  I,  Sec.  10,  §  1. 

(2)  Long  Island  Water  Co.  v.  Brooklyn,  166  U.  S.,  685,  690-91. 

219 


220  CONSTITUTIONAL  LAW 

sheer  confiscation,  or  of  unreasonable  abrogation  of  con- 
tracts would  doubtless  fall  within  this  guarant5^ 

§  227.    What  acts  of  impairment  are  forbidden?    A 
state  may  atfect  the  obligation  of  contracts  in  a  variety 
of  ways.    A  state  Q^urt  may  erroneously  intei'pret  a  con- 
tract in  such  a  way  as  to  deprive  one  of  the  parties  of  a 
right  flowing  from  it  that  he  should  properly  have.    The 
Constitution  does  not  forbid  this  (3).    A  state  court  may 
lay  down  the  law  in  a  certain  manner,  and  upon  the  faith     j 
of  this  contracts  may  be  made,  and  then  the  same  court 
may  reverse  its  former  decision  and  lay  down  a  rule 
of  law  so  different  that  the  former  contracts  are  seriously 
impaired  or  even  rendered  altogether  invalid.     This  is     i 
not  forbidden  (4).    A  contract  may  be  unenforceable,  and     i 
hence  impaired,  on  account  of  the  acts  of  some  adminis-     I 
trative  officer,  or  of  some  private  individual,  but  there     ! 
is  no  redress  for  this  under  the  contract  clause  of  the 
Constitution. 

*'In  order  to  come  within  the  provision  of  the  Consti-  ^ 
tution  of  the  United  States  which  declares  that  no  state 
shall  pass  any  law  impairing  the  obligation  of  contracts, 
not  only  must  the  obligation  of  a  contract  have  been  im- 
paired, but  it  must  have  been  impaired  by  a  law  of  the 
state.  The  prohibition  is  aimed  at  the  legislative  power 
of  the  state,  and  not  at  the  decisions  of  its  courts,  or  the 
acts  of  administrative  or  executive  boards  or  officers,  or 
the  doings  of  corporations  or  individuals"  (5). 


(3)  Railway  Co.  v.  Rock,  4  Wall.,  177. 

(4)  National  Loan  Asso.  v.  Brahan,  193  U.  S.,  635. 

(5)  New   Orleans   Waterworks  Co.   v.   Louisiana   Sugar   Co.,   125 
U.  S.,  18. 


FUNDAMENTAL  RIGHTS  221 

The  words  ''pass  a  law"  in  the  Constitution  evidently 
refer  only  to  legislative  law-making,  not  such  incidental 
law-making  as  results  from  the  decisions  of  courts,  or 
the  acts  of  executive  officers. 

On  the  other  hand  legislative  enactments  against  which 
the  prohibition  is  directed,  are  not  confined  to  acts  of  the 
state  legislature.  **  Any  enactment,  from  whatever  source 
originating,  to  which  a  state  gives  the  force  of  law,  is  a 
statute  of  the  state  "  (6) .  ' '  The  by-laws  or  ordinances  of 
a  municipal  corporation  may  be  such  an  exercise  of  legis- 
lative power  delegated  by  the  legislature  to  the  corpora- 
tion as  a  political  subdivision  of  the  state,  having  all  the 
force  of  law  within  the  limits  of  the  municipality,  that 
it  may  properly  be  considered  as  a  law,  within  the  mean- 
ing of  this  clause  of  the  Constitution"  (note  5,  above). 
A  state  constitution  adopted  directly  by  the  people  of 
the  state  is  a  "law." 

§  228.  What  is  a  contract?  The  contracts  protected 
by  the  Constitution  are  those  to  the  terms  of  which  the 
parties  have  assented.  Obligations  imposed  by  law  irre- 
spective of  the  consent  of  the  parties  are  not  meant,  al- 
though they  may  for  some  purposes  be  classified  as  con- 
tracts. For  instance,  A  owes  X  $100,  on  which  A  has 
agreed  to  pay  6%  interest.  The  legislature  could  not 
reduce  the  rate  of  interest  to  5%  on  this  contract,  be- 
cause this  would  impair  the  rights  X  had  arising  out  of 
the  original  contract  under  the  law  as  it  stood  when  the 
contract  was  made.  But,  if  X  sues  A  and  obtains  a 
judgment  for  the  $100  and  interest,  the  contract  between 


(6)     Williams  v.  Bruffy,  96  U.  S.,  p.  183. 

Vol.  XII— 16 


222  CONSTITUTIONAL  LAW 

X  and  A  is  now  destroyed,  and  its  place  has  been  taken 
by  an  order  of  court,  in  the  fonn  of  a  judgment  that  A 
pay  its  amount  or  his  property  will  be  seized  in  satisfac- 
tion. When  the  judgment  was  obtained  the  law  may 
have  entitled  X  to  6%  interest  upon  the  judgment  as 
damages  so  long  as  it  remained  unpaid,  but  the  state 
may  reduce  the  rate  of  interest  on  a  judgment  at  any 
time.  ''He  has  no  contract  whatever  on  the  subject  with 
the  defendant  in  the  judgment,  but  his  right  is  to  receive, 
and  the  defendant's  obligation  is  to  pay,  just  what  the 
state  chooses  to  prescribe"  (7). 

A  state  may  authorize  divorces  for  causes  that  were 
not  grounds  for  a  divorce  when  the  marriage  was  entered 
into;  and,  where  the  state  constitution  does  not  forbid, 
the  legislature  itself  may  pass  an  act  divorcing  parties 
within  the  state.  The  relation  resulting  from  the  mar- 
riage contract  is  treated  as  a  status  and  not  merely  as  a 
contract,  and  it  is  within  the  legislative  power  of  thej 
state  to  alter  this  status  in  the  interest  of  the  public 
welfare  (8). 

§  229.  Same:  Grants.  The  first  case  that  came  before 
the  United  States  Supreme  Court,  requiring  an  interpre-j 
tation  of  the  contract  clause  of  the  Constitution  was  the 
famous  case  of  Fletcher  v.  Peck.  The  state  of  Georgia 
by  an  act  of  its  legislature  granted  land  to  one  Gunn, 
who  sold  to  various  other  parties.  After  Gunn  had  thus 
disposed  of  the  land,  Georgia  passed  a  statute  rescind- 
ing the  legislative  grant  previously  made  to  Gunn  and 


(7)  Morley  v.  Lake  Shore  Railway  Co.,  146  U.  S.,  162. 

(8)  Maynard  v.  Hill,  125  U.  S.,  190. 


FUNDAMENTAL  RIGHTS  223 

asserting  the  title  of  the  state  to  the  land  it  contained, 
upon  the  ground  of  his  alleged  fraud  in  obtaining  the 
grant.  The  question  arose  whether  this  last  Georgia 
statute  could  affect  the  title  of  persons  who  had  previ- 
ously bought  the  land  from  Gunn.  in  ignorance  of  the 
alleged  fraud.  It  was  claimed  that  the  act  by  which 
Georgia  purported  to  do  this  impaired  the  obligation  of 
the  state's  contract  with  Gunn  and  hence  was  unconsti- 
tutional. The  Federal  Supreme  Court  upheld  this  con- 
tention.   Chief  Justice  Marshall  said : 

*'Is  a  grant  a  contract?  A  contract  is  a  compact  be- 
tween two  or  more  parties,  and  is  either  executory  or 
executed.  An  executory  contract  is  one  in  which  a  party 
binds  himself  to  do,  or  not  to  do,  a  particular  thing ;  such 
was  the  law  under  which  the  conveyance  was  made  by  the 
governor.  A  contract  executed  is  one  in  which  the  object 
of  contract  is  performed;  and  this,  says  Blackstone,  dif- 
fers in  nothing  from  a  grant.  A  contract  executed,  as 
well  as  one  which  is  executory,  contains  obligations  bind- 
ing on  the  parties.  A  grant,  in  its  own  nature,  amounts 
to  an  extinguishment  of  the  right  of  the  grantor,  and 
implies  a  contract  not  to  reassert  that  right.  A  party  is, 
therefore,  always  estopped  by  his  own  grant"  (9). 

One  of  the  judges  in  this  case  doubted  whether  there 
could  be  said  to  be  any  obligations  remaining  to  a  con- 
tract that  had  been  wholly  performed  on  both  sides,  and 
so  whether  this  act  of  Georgia  could  impair  any  obliga- 
tion of  an  executed  contract.    The  ruling  of  the  majority, 


(9)     6  Cranch,  87,  136-37. 


224  CONSTITUTIOXAL  LAW 

however,  has  never  been  altered  by  the  court,  and  exe- 
cuted grants  are  treated  as  contracts  which  cannot  be 
repudiated. 

§  230.  Same:  Corporation  charters.  The  question 
whether  a  corporate  charter  is  a  contract  protected  by 
the  Constitution,  or  not,  was  elaborately  discussed  in 
one  of  the  most  famous  decisions  of  the  United  States 
Supreme  Court,  Dartmouth  College  v.  Woodward  (10). 
Dartmouth  College  in  New  Hampshire  had  a  charter 
granted  by  the  English  crown  in  1769,  by  which  twelve 
jDersons  were  incorjDorated  as  trustees  and  granted  ap- 
propriate privileges  and  powers  to  conduct  the  affairs 
of  the  college,  with  authority  to  fill  all  vacancies  in  their 
own  body.  In  1816  the  New  Hampshire  legislature  at- 
tempted to  alter  this  charter  by  increasing  the  number 
of  trustees,  the  additional  members  to  be  appointed  by 
the  governor,  and  placed  the  more  important  acts  of  the 
trustees  under  the  control  of  a  board  of  overseers.  The 
original  trustees  contested  this  legislation  and  the  United 
States  Supreme  Court  declared  the  original  charter  to 
be  a  contract,  perpetually  continuing,  which  the  New 
Hampshire  legislation  unconstitutionally  impaired.  In 
a  corporate  charter,  as  in  a  conveyance  of  land,  the  court 
found  a  contract  that  the  grant  should  not  be  revoked. 
Subsequent  cases  extended  the  doctrine  to  all  corpo- 
rate charters,  including  those  of  ordinary  business 
corporations. 

A  doctrine  fraught  with  consequences  so  important  as 
this  one  has  not  passed  unchallenged,  and  the  Dartmouth 


(10)     4  Wheat.  518. 


FUNDAMENTAL  RIGHTS  225 

College  case  has  received  much  criticism.  It  has  been 
forcibly  urged  that  the  grant  of  a  corporate  charter  is 
nothing  but  an  ordinary  act  of  legislation,  permitting 
that  which  without  legislative  action  could  not  be  done. 
Without  legislative  authorization,  men  may  not  form 
themselves  into  that  artificial  entity  called  a  corporation, 
but  must  do  business  subject  to  individual  liability.  For 
the  public  convenience,  the  legislature  may  authorize 
men  to  form  such  organizations,  but  this  no  more  con- 
stitutes a  contract  on  the  part  of  the  state  never  to  repeal 
the  law,  than  does  a  sugar  bounty  or  a  game  law.  Such 
is  the  opposing  argument.  Where  corporations  are 
chartered,  as  today,  chiefly  under  general  laws  that  may 
be  taken  advantage  of  by  any  persons  who  fulfill  certain 
specified  requirements,  it  is  difficult  to  see  in  corporate 
charters  any  contract  on  the  part  of  the  state ;  but  when 
each  charter  required  a  separate  act  of  the  legislature  it 
was  manifestly  easier  to  interpret  these  grants  as  con- 
tracts. The  doctrine  of  the  Dartmouth  College  case  is 
firmly  established,  whatever  may  be  thought  of  its 
grounds. 

§  231.  What  is  the  obligation  of  a  contract.  A  brief 
analysis  of  the  nature  of  a  contract  will  be  helpful  in 
understanding  what  is  meant  by  the  * '  obligation  of  a  con- 
tract." A  may  promise  B  to  give  him  a  horse.  If  A 
does  not  choose  to  keep  his  promise,  B  can  secure  re- 
dress against  A  in  a  court  of  justice  only  in  case  the  law 
applicable  to  the  parties  when  the  promise  was  made  im- 
posed upon  A  an  obligation  to  perform  it.  If  it  be  the 
law  applicable  to  the  situation  that  gratuitous  promises 


226  CONSTITUTIONAL  LAW 

are  unenforceable,  A  incurs  no  legal  obligation  to  B  in 
consequence  of  this  promise.  This  happens  to  be  the 
law  in  all  American  states.  A's  contract,  if  such  it  can  be 
called,  is  without  obligation,  because  it  is  gratuitous  or 
without  consideration.  Again,  suppose  A  orally  agrees 
to  buy  B  's  land,  for  $100  and  B  orally  agrees  to  sell  the 
land  to  A  for  this  sum.  Here  the  promises  are  not  gratu- 
itous, each  being  the  consideration  for  the  other,  but  still 
the  law  of  our  American  states  attaches  no  obligation 
to  the  words  and  intentions  of  A  and  B,  because  agree- 
ments for  the  sale  of  land  must  be  in  writing  to  be  legally 
enforceable.  If  one  of  the  parties  is  a  married  woman 
the  law  of  the  state  may  require  not  only  consideration 
and  a  writing,  but  an  examination  before  some  public 
oflScer  to  make  certain  that  what  she  does  is  unaffected 
by  marital  coercion.  On  some  agreements,  like  those  in 
restraint  of  marriage,  the  law  may  impose  no  obligation 
whatever,  on  account  of  their  bad  social  tendencies.  It  is 
thus  clear  that  the  obligation  of  a  contract  consists  of  the 
duties  which  the  existing  law  applicable  to  the  situation 
imposes  upon  one  party  in  consequence  of  the  form  and 
content  of  his  agreement,  and  of  the  correlative  rights 
which  the  other  party  has  to  enforce  these  duties. 

Any  state  law,  therefore,  that  impairs  the  duties  law- 
fully arising  from  a  prior  contract  violates  the  constitu- 
tional prohibition.  Of  this  character  is  a  state  bank- 
ruptcy law,  if  made  applicable  to  contracts  already  in 
force.  A  has  agreed,  for  instance,  to  repay  to  B  on  a 
certain  date  $100  borrowed  from  B.  A  state  law  declar- 
ing that  A  need  not  make  payment  to  B,  but  may  dis-' 


FUNDAMENTAL  RIGHTS  227 

charge  himself  from  this  obligation  upon  surrendering 
all  of  his  property  for  distribution  among  his  creditors, 
impairs  the  obligation  imposed  upon  A  by  the  prior  law, 
and  hence  is  invalid  (11). 

The  same  principles  apply  to  existing  laws  that  affect 
the  validity  or  construction  of  a  contract  at  the  time  it  is 
made.  ''A  statute  of  frauds  embracing  a  pre-existing 
parol  contract  not  before  required  to  be  in  writing  would 
affect  its  validity.  A  statute  declaring  that  the  word 
'ton'  should  thereafter  be  held,  in  prior  as  well  as  subse- 
quent contracts,  to  mean  one-half  or  double  the  weight 
before  prescribed,  would  affect  its  construction"  (12). 

§  232.  Impairment  of  remedies  for  breach  of  contract. 
When  a  party  to  a  contract  inexcusably  fails  to  perform 
any  of  the  duties  that  the  law  imposes  upon  him  in  con- 
sequence of  his  agreement,  a  new  right  arises  to  the 
other  party  to  the  contract — a  right  oi  suit  upon  the  con- 
tract to  obtain  redress.  This  right  may  be  to  compel  the 
defendant  to  act  or  to  refrain  from  acting  precisely  as  he 
agreed,  commonly  called  a  right  to  specific  performance ; 
or  it  may  be  to  compel  the  defendant  to  make  compensa- 
tion for  his  breach  of  the  contract,  called  a  right  to  dam- 
ages. The  right  to  recover  specific  property  at  law  by 
replevin  or  ejectment  may  be  treated  for  the  purposes 
of  this  discussion  as  a  riglit  to  specific  performance.  If 
the  plaintiff  pursues  his  right  to  damages  and  obtains  a 
judgment  against  the  defendant,  then  additional  rights 
accrue  to  him.    He  may  seize  the  defendant's  property 


(11)  Sturges  V.  Crowninshield,  4  Wheat.,  117. 

(12)  Von  Hoffman  v.  Quincy,  4  Wall..  535,  552. 


22S  CONSTITUTIONAL  LAW 

with  certain  formalities,  and  sell  it  to  satisfy  his  claim 
for  damages. 

In  earlier  decisions  under  the  contract  clause  it  was 
not  clearly  intimated  to  what  extent  auxiliary  rights  to 
the  application  of  remedies  were  a  part  of  the  *' obliga- 
tion" of  a  contract  protected  by  the  Constitution.  It  was 
frequently  admitted  that  the  remedy  might  be  modified, 
provided  the  defendant's  duty  was  not  altered,  but  it  was 
perhaps  not  clearly  perceived  what  an  intimate  connec- 
tion there  was  between  the  two.  During  the  hard  times 
consequent  upon  the  panic  of  1837  various  states  passed 
''stay  laws,"  by  which  the  collection  of  debts  by  cred- 
itors was  postponed  or  impeded  by  conditions  designed 
to  operate  in  favor  of  the  debtor.  Several  of  these  cases 
came  to  the  United  States  Supreme  Court,  and  were  held 
unconstitutional  wherever  they  substantially  interfered 
with  the  collection  of  the  debt. 

In  a  case  from  Illinois,  where  a  statute  subsequent  to 
the  creation  of  a  mortgage  provided  that  tbe  property 
should  not  be  sold  for  less  than  two-thirds  of  its  ap- 
praised value  and  that  the  mortgagor  should  have  one 
year  in  which  to  redeem  it  from  the  sale,  the  court  held 
that  these  provisions  so  seriously  affected  the  previous 
remedy  that  they  amounted  to  an  impairment  of  the  ob- 
ligation of  the  original  mortgage  contract.  The  court 
said: 

''It  is  manifest  that  the  obligation  of  the  contract,  and 
the  rights  of  a  party  under  it,  may,  in  effect,  be  destroyed 
by  denying  a  remedy  altogether ;  or  may  be  seriously  im- 
paired by  burdening  the  proceedings  with  new  condi^ 


FUNDAMENTAL  RIGHTS  229 

tions  and  restrictions,  so  as  to  make  the  remedy  hardly 
worth  pursuing.  .  .  .  When  this  contract  was  made, 
no  statute  had  been  passed  by  the  state  changing  the 
rules  of  law  or  equity  in  relation  to  a  contract  of  this 
kind ;  and  it  must,  therefore,  be  governed,  and  the  rights 
of  the  parties  under  it  measured,  by  the  rules  above 
stated.  They  were  the  laws  of  Illinois  at  the  time.  .  .  . 
They  were  annexed  to  the  contract  at  the  time  it  was 
made,  and  formed  a  part  of  it ;  and  any  subsequent  law, 
impairing  the  rights  thus  acquired,  impairs  the  obliga- 
tions which  the  contract  imposed"  (13). 

In  a  later  case  this  principle  was  reiterated,  the  court 
saying : 

^'Nothing  can  be  more  material  to  the  obligation  than 
the  means  of  enforcement.  Without  the  remedy  the  con- 
tract may,  indeed,  in  the  sense  of  the  law,  be  said  not  to 
exist,  and  its  obligation  to  fall  within  the  class  of  those 
moral  and  social  duties  which  depend  for  their  fulfill- 
ment wholly  upon  the  will  of  the  individual.  The  ideas 
of  validity  and  remedy  are  inseparable,  and  both  are 
parts  of  the  obligation,  which  is  guaranteed  by  the  Con- 
stitution against  invasion.  The  obligation  of  a  contract 
*is  the  law  which  binds  the  parties  to  perform  their  agree- 
ment. '  .  .  .  A  right  without  a  remedy  is  as  if  it  were 
not.  For  every  beneficial  purpose  it  may  be  said  not  to 
exist"  (14). 

§  233.  Same:  Municipal  bond  cases.  The  extent  to 
which  the  right  to  the  remedy  existing  when  the  contract 


(13)  Bronson  v.  Kinzie,  1  How.,  311,  319. 

(14)  Von  HofiCman  v.  Quincy,  4  Wall.,  535,  552,  554. 


230  CONSTITUTIONAL  LAW 

was  made  becomes  a  part  of  the  obligation  of  the  contract 
has  been  most  carefully  discussed  and  most  fully  illus- 
trated in  suits  upon  municipal  bonds.  When  a  municipal- 
ity, whether  city,  village,  county,  or  other  subdivision  of 
the  state,  borrows  money  and  issues  bonds  therefor,  it 
acts  under  some  state  law,  special  or  general,  enabling 
it  to  issue  the  bonds  and  to  levy  taxes  to  pay  the  interest 
and  principal  as  it  falls  due.  A  suit  against  a  municipal 
corporation  by  which  a  general  judgment  is  obtained 
against  it  may  not  secure  payment,  because  the  munici- 
pality may  have  little  or  no  property  not  used  for  strictly 
governmental  purposes  and  it  is  generally  held  that  prop- 
erty of  the  latter  character  cannot  be  sold  upon  execution 
to  pay  debts,  unless  specifically  mortgaged  for  this  pur- 
pose. Practically  the  only  effective  remedy  of  municipal 
creditors  is  the  exercise  of  the  power  of  municipal  taxa- 
tion to  discharge  debts.  It  has  been  held,  therefore,  that 
existing  laws,  authorizing  municipal  taxation  the  pro- 
ceeds of  which  are  applicable  to  municipal  debts,  become 
a  part  of  the  obligation  of  contracts  by  which  such  debts 
are  incurred.  Tlie  subsequent  abolition  or  reduction  of 
the  municipal  taxing  power  applicable  to  such  debts  is 
invalid  if  it  leaves  the  municipality  unable  to  discharge 
its  obligations  (15). 

§  233a.  Same:  No  taxing  officers.  When  a  state  legis- 
lature is  willing  to  connive  with  one  of  its  municipalities 
to  aid  it  in  repudiating  its  debts,  more  difficult  problems 
are  presented.  Taxes  are  levied  by  certain  municipal 
officers.    If  these  refuse  to  do  their  duty  they  may  be 


(15)     Von  Hoffman  v.  Quincy,  4  Wall.,  535. 


FUNDAMENTAL  RIGHTS  231 

compelled  to  act  by  a  mandamus  issued  from  either  a 
state  or  Federal  court.  Suppose  that  all  of  the  appro- 
priate mimicipal  officers  resign,  or  that  none  are  elected. 
If  the  state  legislature  acquiesces  in  this  and  the  state 
law  has  provided  no  remedy  for  such  an  emergency  the 
bondholders  are  for  the  time  being  helpless.  In  one  such 
case  they  made  application  to  a  Federal  court  to  levy  the 
taxes  itself  and  direct  a  marshal  to  make  up  the  assess- 
ment rolls  and  collect  the  taxes  required  by  the  obliga- 
tion of  their  contract.  The  Federal  court  refused  to  do 
chis,  and  in  a  later  case  gave  its  reason  as  follows : 

^  *  The  power  we  are  here  asked  to  exercise  is  the  very 
delicate  one  of  taxation.  .  .  .  The  power  must  be 
derived  from  the  legislature  of  the  state.  So  far  as  the 
present  case  is  concerned,  the  state  has  delegated  the 
power  to  the  levee  commissioners.  If  that  body  has 
ceased  to  exist,  the  remedy  is  in  the  legislature  either  to 
assess  the  tax  by  special  statute  or  to  vest  the  power  in 
some  other  tribunal.  It  certainly  is  not  vested  in  any 
Federal  court.  .  .  .  It  is  not  only  not  one  of  the  in- 
herent powers  of  the  court  to  levy  and  collect  taxes,  but  it 
is  an  invasion  by  the  judiciary  of  the  Federal  govern- 
ment of  the  legislative  functions  of  the  state  govern- 
ment" (16). 

§234.  Same:  Abolition  of  indebted  municipality. 
Even  a  repudiating  municipality  finds  it  inconvenient  to 
continue  permanently  without  the  services  of  officers 
authorized  to  levy  taxes,  so  that  other  methods  of  evading 
its  creditors  have  been  sought.    Sometimes  the  state  leg- 


(lo)     Heine  v.  Levee  Commissioners,  19  Wall.,  655,  660-61. 


232  CONSTITUTIONAL  LAW 

islatnre  has  repealed  the  charter  of  the  indebted  munici- 
pality, seeking  to  destroy  its  corporate  existence.  Usu- 
ally when  this  has  been  done  one  or  more  new  municipal 
corporations  have  been  formed  from  the  territory  of  the 
original  municipality,  or  its  territory  has  been  annexed 
to  other  municipalities.  In  such  cases  it  has  been  held 
that  the  municipalities  that  succeeded  to  the  territory, 
property,  and  jurisdiction  of  the  old  one,  also  acquired 
its  existing  tax  laws  and  became  liable  to  enforce  them 
over  the  old  territory  of  the  former  municipality  just 
as  the  latter  could  have  been  compelled  to  do  (17). 

If  a  municipality  were  abolished  and  its  government, 
or  the  taxing  power  thereof,  were  assumed  directly  by 
the  legislature,  probably  the  bondholders  could  not  get 
relief  from  the  courts,  as  it  would  not  be  possible  for  the 
latter  to  order  the  legislature  to  levy  the  necessary  taxes 
as  they  could  order  the  appropriate  municipal  officers 
to  do  (18). 

§  235.  Valid  changes  in  remedies.  While  what  will 
constitute  the  complete  performance  of  a  contract  by  the 
party  bound  may  not  be  altered  at  all  by  a  subsequent 
law,  the  remedy  provided  by  the  state  for  non-perform- 
ance may  be  altered  to  any  extent,  provided  only  that  it 
be  substantially  as  efficacious  as  was  the  original  one. 
Courts,  process,  forms  of  action  may  be  changed,  new 
rules  of  evidence  or  practice  may  be  used,  new  modes  of 
execution  may  be  substituted,  or  the  time  necessary  to 
bar  the   suit  under  the  statute  of  limitations  mav  be 


(17)  Mobile  v.  Watson,  116  U.  S..  289. 

(18)  Meriwether  v.  Garrett,  102  U.  S.,  472. 


FUNDAMENTAL  RIGHTS  233 

altered ;  in  short,  any  change  of  procedure  or  remedy  is 
valid  if  it  is  as  adequate  as  the  old  one. 

In  what  respects  a  new  remedy  may  be  held  less  effica- 
cious than  an  old  one  is  well  illustrated  by  a  case  from 
Virginia.  The  state  had  issued  certain  bonds,  the  cou- 
pons of  which,  due  semi-annually,  were  made  receivable 
for  state  taxes.  Direct  repudiation  of  the  bonds  being 
impossible  on  account  of  this  latter  provision,  Virginia 
passed  a  number  of  laws  designed  to  hamper  the  use  of 
the  coupons  for  taxes.  Expert  evidence  of  the  genuine- 
ness of  the  coupons  was  forbidden  to  be  received;  no 
coupon  could  be  used  for  taxes  unless  the  bond  from 
which  it  was  cut  was  produced  with  proof  that  it  was 
cut  therefrom ;  and  all  coupons  were  required  to  be  used 
for  taxes,  if  at  all,  within  one  year  from  their  maturity. 
All  these  provisions  were  held  substantially  to  impair 
the  coupon  holders'  remedies  and  therefore  to  be  invalid. 
Regarding  the  shortening  of  the  period  for  the  limita- 
tions of  actions,  the  court  said: 

''The  passage  of  a  new  statute  of  limitations,  giving  a 
shorter  time  for  the  bringing  of  actions  than  existed  be- 
fore, even  as  applied  to  actions  which  had  accrued,  does 
not  necessarily  affect  the  remedy  to  such  an  extent  as  to 
impair  the  obligation  of  the  contract  within  the  mean- 
ing of  the  Constitution,  provided  a  reasonable  time  is 
given  for  the  bringing  of  such  actions''  (19). 

§236.  Special  charter  privileges  as  contracts.  Cor- 
porate charters  sometimes  contain  special  privileges  or 
exemptions  other  than  merely  that  of  capacity  for  corpo- 


(19)     McGahey  v.  Virginia,  135  U.  S.,  662. 


234  CONSTITUTIONAL  LAW 

rate  existence.  A  charter  may  contain  an  exemption  from 
taxation,  or  from  state  regulation  of  rates,  or  from  cer- 
tain kinds  of  competition.  If  any  of  these  privileges  are 
placed  in  a  corporate  charter,  are  they  also  irrepealable  ■? 
In  a  long  series  of  cases  such  privileges  have  also  been 
declared  by  the  United  States  Supreme  Court  to  be 
contracts  that  cannot  be  impaired  by  subsequent  state 
legislatures.  As  regards  a  charter  exemption  from  taxa- 
tion, this  was  held  in  1853  in  the  case  of  State  Bank  of 
Ohio  V.  Knoop  (20).  A  charter  grant  of  an  exclusive 
right  to  bridge  a  river  within  a  distance  of  two  miles 
upon  either  side  of  the  proposed  bridge  was  upheld  in 
1865,  against  a  later  authorization  of  a  competing  bridge 
within  the  prohibited  distance;  so  also  exclusive  rights 
to  supply  gas  and  water  to  cities  have  been  upheld  (21). 
Likewise  charter  agreements  that  particular  rates  may 
be  charged  by  public  service  corporations,  without  sub- 
sequent reduction  by  the  state,  have  been  enforced  (22). 

§  237.  Qualifications  of  this  doctrine.  Manifestly,  if 
the  state  or  a  municipality  acting  under  state  authority 
could  thus  deprive  itself  by  contract  of  such  important 
governmental  powers  as  those  of  taxation,  rate  regula- 
tion, and  the  encouragement  of  competition,  the  door 
was  open  for  great  abuses  in  a  country  where  municipal 


(20)  16  How.,  369. 

(21)  The  Binghamton  Bridge,  3  Wall.,  51;  New  Orleans  Gas  Co.  v. 
Louisiana  Light  Co.,  115  U.  S.,  650;  New  Orleans  Waterworks  Co. 
V.  Rivers,  115  U.  S.,  674. 

(22)  Los  Angeles  v.  Los  Angeles  Water  Co.,  177  U.  S.,  558  (water 
rates) ;  Detroit  v.  Detroit  Street  Railway  Co.,  184  U.  S.,  368  (street 
car  fares). 


FUNDAMENTAL  RIGHTS  235 

and  legislative  bodies  are  so  commonly  improvident  and 
not  infrequently  corrupt  as  in  America.  Side  by  side 
with  this  doctrine  of  charter  contracts  have  grown  up  two 
other  doctrines  that  have  greatly  qualified  the  other  and 
greatly  limited  the  likelihood  of  its  abuse.  The  first  of 
these  is  that  the  terms  of  every  special  privilege  granted 
by  the  state  must  be  strictly  construed,  so  that  the  grantee 
takes  nothing  in  derogation  of  public  rights  unless  so 
clearly  expressed  that  no  other  interpretation  is  reason- 
ably possible.  The  second  qualification  is  that,  in  re- 
spect to  certain  very  important  governmental  powers, 
the  legislature  cannot  even  by  express  contract  tie  its 
hands  for  the  future.  In  short,  a  government  cannot  by 
contract  abrogate  its  power  of  governing. 

§  238.  Strict  construction  of  special  privileges.  The 
great  case  of  Charles  River  Bridge  v.  Warren  Bridge 
(23)  has  always  been  regarded  as  the  leading  case  upon 
the  strict  construction  of  corporate  charters.  In  1785 
Massachusetts  chartered  a  company  to  build  a  toll  bridge 
OVMT  the  Charles  River,  the  charter  being  extended  for  a 
peiiod  of  seventy  years,  when  the  bridge  was  to  belong 
to  the  state.  In  1828  Massachusetts  incorporated  an- 
other company  to  build  a  second  toll  bridge  across  the 
Charles  a  few  rods  from  the  former  bridge,  with  a  provi- 
sion that  it  should  become  a  free  bridge  in  six  years. 
The  original  bridge  company  asked  an  injunction  against 
its  rival  upon  the  ground  that  the  grant  of  a  charter 
to  build  a  bridge  and  collect  tolls  included  an  implied 
contract   that    the    state    should   not   thereafter   make 


(23)     11  Peters,  420. 


236  CONSTITUTIONAL  LAW 

the  collection  of  tolls  impossible  by  authorizing  a 
free  bridge  practically  alongside  the  toll  bridge.  By  a 
divided  vote  the  Supreme  Court  denied  this  contention, 
saying  that  any  ambiguity  in  the  terms  of  a  public  con- 
tract must  be  construed  in  favor  of  the  public,  and  that 
the  abandonment  of  any  state  legislative  power  was  not 
to  be  presumed  in  the  case  where  a  deliberate  purpose 
to  abandon  it  did  not  appear.  The  express  grant  of  the 
power  to  build  a  toll  bridge  carried  no  implied  contract 
that  the  state  would  not  subsequently  charter  a  competing 
bridge. 

This  doctrine  of  strict  construction  of  corporate  pow- 
ers has  been  constantly  exemplified  since,  and  is  in  full 
force  today.  A  few  typical  instances  of  such  construc- 
tion may  be  given.  A  newly  incorporated  railroad  com- 
pany was  authorized  to  construct  a  railway  in  Missis- 
sippi, and  the  road  was  to  be  exempt  from  taxation  for 
ten  years  after  the  completion  of  the  road.  It  was  held 
that  this  tax  exemption  did  not  begin  until  the  road  was 
completed,  although  the  greatest  need  for  such  exemp- 
tion would  exist  during  its  construction  and  before  it  was 
in  full  operation  (24).  In  another  case  a  company  was 
chartered  to  supply  a  town  with  water  for  thirty  years, 
with  a  provision  that  ''said  company  shall  charge  the 
following  rates"  during  this  time.  It  was  held  that 
"shall"  was  a  command  to  the  company  not  to  exceed 
these  rates,  and  not  a  contract  that  the  state  would  not 
reduce  them  (25).    Another  striking  case  arose  in  Chi- 


(24)  Vicksburg  Railroad  Co.  v.  Dennis,  116  U.  S.,  665. 

(25)  Rogers  Park  Water  Co.  v.  Fergus,  180  U.  S.,  624. 


FUNDAMENTAL  RIGHTS  237 

cago.  A  corporation  chartered  for  twenty-five  years  was 
granted  by  the  city  of  Chicago  the  right  to  operate  street 
railways  in  the  city  for  the  period  of  twenty-five  years. 
A  few  years  later  the  Illinois  legislature  extended  the 
existence  of  this  corporation  to  ninety-nine  years,  and 
provided  that  all  contracts,  stipulations,  licenses,  and 
undertakings  entered  into  between  Chicago  and  the  cor- 
poration respecting  the  regulation  and  use  of  street  rail- 
ways in  the  city  should  b«  continued  in  force  "during 
the  life  hereof. ' '  This  act  was  opposed  by  many  citizens 
of  Chicago  on  the  ground  that  it  extended  the  street  rail- 
way franchise  for  ninety-nine  years,  without  the  consent 
of  the  city,  and  it  was  vetoed  by  the  governor  of  Illinois 
on  this  ground.  The  legislature  passed  it  over  the  veto, 
and  forty  years  later  it  came  before  the  United  States 
Supreme  Court  for  construction.  A  majority  of  the 
court  held  that  the  corporate  existence  was  extended  for 
ninety-nine  years,  but  that  the  right  to  run  a  street  rail- 
way in  Chicago  was  not  extended  at  all,  the  words  ' '  dur- 
ing the  life  hereof"  referring  to  the  life  of  the  original 
grant  from  the  city,  and  not  the  newly  extended  life  of 
the  corporation  itself  (26). 

§  239.    Special  privileges  construed  non-transferable. 

Another  phase  of  the  doctrine  of  strict  construction  is 
the  rule  that  any  special  privilege,  even  though  clearly 
granted,  is  to  be  construed  as  strictly  personal  to  the 
grantee  and  not  transferable  to  anyone  else,  unless  the 
privilege  is  made  transferable  in  clear,  express  terms. 


(26)     Blair  v.  Chicago,  201  U.  S.,  400. 

Vol.  XII— 17 


238  CONSTITUTIONAL  LAW 

For  instance,  if  the  state  authorizes  the  transfer  by  one 
corporation  of  all  its  propertj^  franchises,  and  privileges 
to  anotJier  corporation,  this  will  not  include  a  tax  ex- 
emption possessed  by  the  first  company.  **The  same 
considerations  which  call  for  clear  and  unambiguous  lan- 
guage to  justify  the  conclusion  that  immunity  from  taxa- 
tion has  been  granted  in  any  instance  must  require  simi- 
lar distinctness  of  expression  before  the  immunity  will 
be  extended  to  others  than  the  original  grantee.  It  will 
not  pass  merely  by  a  conveyance  of  the  property  and 
franchises  of  a  railroad  company,  although  such  com- 
pany may  hold  its  property  exempt  from  taxation"  (27). 
Even  when  two  coriDorations,  each  of  which  has  a  tax 
exemption,  consolidate  and  form  a  new  corporation,  the 
new  one  does  not  become  the  owner  of  either  of  the  old 
tax  exemptions  (28). 

§  240.  Certain  legislative  powers  unrestrainable  by 
contract.  Regulation  of  public  morals.  At  various  pe- 
riods during  the  development  of  the  doctrine  that  the 
state  might  contract  away  some  of  its  powers  in  corpo- 
rate grants,  dissenting  judges  had  protested  that  no  leg- 
islative body  could  barter  away  its  powers  of  legislation 
in  this  way.  In  1879  an  unusual  case  came  to  the  court. 
In  1867  Mississippi  had  chartered  a  corporation  expressly 
authorized  to  carry  on  a  lottery  for  twenty-five  years, 
in  return  for  a  certain  annual  sum  and  a  percentage  of 
the  lottery  receipts.  Ttto  years  later  Mississippi  for- 
bade lotteries,  and  the  lottery  company  resihted  this  pro- 


(27)  Picard  v.  East  Tennessee  Railway  Co.,  130  U.  S.,  637. 

(28)  Yazoo  &  Mississippi  R.  R.  Co.  v.  Adams,  180  U.  S.,  1. 


FUNDAMENTAL  RIGHTS  239 

hibition  on  the  ground  of  its  charter  contract.  When  the 
case  reached  the  United  States  Supreme  Court  the  sub- 
sequent state  legislation  was  upheld.    The  court  said: 

''The  question  is  therefore  directly  presented,  whether, 
in  view  of  these  facts,  the  legislature  of  a  state  can,  by 
the  charter  of  a  lottery  company,  defeat  the  will  of  the 
people,  authoritatively  expressed,  in  relation  to  the  fur- 
ther continuance  of  such  business  iu  their  midst.  We 
think  it  cannot.  No  legislature  can  bargain  away  the 
public  health  or  the  public  morals.  The  people  themselves 
cannot  do  it,  much  less  their  servants.  The  supervision 
of  both  these  subjects  of  governmental  power  is  continu- 
ing in  its  nature,  and  they  are  to  be  dealt  with  as  the 
special  exigencies  of  the  moment  may  require.  Govern- 
ment is  organized  with  a  view  to  their  preservation,  and 
cannot  divest  itself  of  the  power  to  provide  for  them. 
For  this  purpose  the  largest  legislative  discretion  is  al- 
lowed, and  the  discretion  cannot  be  parted  with  any  more 
than  the  power  itself.    ... 

"We  have  held,  not,  however,  without  strong  opposi- 
tion at  times,  that  this  clause  protected  a  corporation  in 
its  charter  exemptions  from  taxation.  While  taxation  is 
in  general  necessary  for  the  support  of  government,  it  is 
not  part  of  the  government  itself.  Government  was  not 
organized  for  the  purposes  of  taxation,  but  taxation  may 
be  necessary  for  the  purposes  of  government.  As  such, 
taxation  becomes  an  incident  to  the  exercise  of  the  legiti- 
mate functions  of  government,  but  nothing  more.  No 
government  dependent  on  taxation  for  support  can  bar- 
gain away  its  whole  power  of  taxation,  for  fhnt  would  be 


1240  CONSTITUTIONAL  LAW 

substantially  abdication.  All  that  has  been  determined 
thus  far  is,  that  for  a  consideration  it  may,  in  the  exercise 
of  a  reasonable  discretion,  and  for  the  public  good,  sur- 
render a  part  of  its  powers  in  this  particular. 

"But  the  power  of  governing  is  a  trust  committed  by 
the  people  to  the  government,  no  part  of  which  can  be 
granted  away.  The  people,  in  their  sovereign  capacity, 
have  established  their  agencies  for  the  preservation  of 
the  public  health  and  the  public  morals,  and  the  protec- 
tion of  public  and  private  rights.  These  several  agencies 
can  govern  according  to  their  discretion,  if  within  the 
scope  of  their  general  authority,  while  in  power;  but 
they  cannot  give  away  nor  sell  the  discretion  of  those 
that  are  to  come  after  them,  in  respect  to  matters  the 
government  of  which,  from  the  very  nature  of  things, 
must  'vary  with  varying  circumstances.'  They  may  cre- 
ate corporations,  and  give  them,  so  to  speak,  a  limited 
citizenship ;  but  as  citizens,  limited  in  their  privileges,  or 
otherwise,  these  creatures  of  the  government  creation 
are  subject  to  such  rules  and  reg-ulations  as  may  from 
time  to  time  be  ordained  and  established  for  the  preser- 
vation of  health  and  morality"  (29). 

§  241.  Same:  Public  health  and  safety.  A  few  years 
later  this  doctrine  was  reaffirmed  in  a  case  that  was 
treated  by  the  court  as  concerning  the  public  health.  In 
1869  Louisiana  granted  to  a  corporation  the  exclusive 
right  to  conduct  slaughter  houses  in  New  Orleans,  and 
in  1881  the  legislature  violated  this  exclusive  privilege. 
The  Supreme  Court  denied  that  the  first  contract  could 


(29)     stone  v.  Misslsaippi,  101  U.  S.,  814,  819-20. 


FUNDAMENTAL  RIGHTS  241 

be  made  irrevocable  by  the  legislature.  It  said :  * '  The 
denial  of  this  power,  in  the  present  instance,  rests  upon 
the  ground  that  the  power  of  the  legislature  intended 
to  be  suspended  is  one  so  indispensable  to  the  public  wel- 
fare that  it  cannot  be  bargained  away  by  contract.  It  is 
that  well-known  but  undefined  power  called  the  public 
power.  .  .  .  While  we  are  not  prepared  to  say  that 
the  legislature  can  make  valid  contracts  on  no  subject 
embraced  in  the  largest  definition  of  the  police  power, 
we  think  that,  in  regard  to  two  subjects  so  embraced,  it 
cannot,  by  any  contract,  limit  the  exercise  of  those  powers 
to  the  prejudice  of  the  general  welfare.  These  are  the 
public  health  and  public  morals"  (30). 

In  later  cases  the  public  safety  has  been  said  to  be 
another  subject  concerning  which  the  state  cannot  con- 
tract away  its  power  to  legislate.  ''Rights  and  priv- 
ileges arising  from  contracts  with  the  state  are  subject 
to  regulations  for  the  protection  of  the  public  health, 
public  morals,  and  public  safety,  in  the  same  sense,  and 
to  the  same  extent  as  are  all  contracts,  or  all  property, 
whether  owned  by  natural  persons  or  corporations"  (31). 

§  242.  Same:  Important  administrative  and  eco- 
nomic interests.  In  other  cases  the  doctrine  has  been  ex- 
tended to  governmental  powers  other  than  those  exer- 
cised to  protect  the  public  health,  morals,  or  safety. 
In  Newton  v.  Commissioners  (32)  it  was  said  that  a  state 


(30)  Butchers  Uniou  Co.  v.  Orescent  City  Co.,  Ill  U.  S.,  74G,  750-51. 

(31)  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.,  650, 
672. 

(32)  100  U.  S.,  548. 


242  CONSTITUTIONAL  LAW 

could  not  make  an  irrepealable  contract  with  the  donors 
of  public  buildings  and  lands  that  a  county  seat  for  the 
holding  of  court  should  be  established  and  kept  in  perjie- 
tnity  at  the  place  where  the  donors  had  given  property 
for  this  purpose.  In  Illinois  Central  Railway  Co.  v.  Illi- 
nois (33)  it  was  held  that  the  Illinois  legislature  could 
not  irrevocably  convey  to  a  railroad  company  the  land 
under  the  harbor  of  Chicago.  The  legislative  duty  to 
act  freely  for  the  public  good  in  respect  to  so  important 
a  matter  could  not  be  relinquished  by  any  grant  or  con- 
tract transferring  such  property.  It  has  also  been  sug- 
gested that  a  legislature  could  not  irrevocably  empower 
a  railroad  to  make  consolidations  with  competing  lines, 
so  that  a  subsequent  legislature  could  not  forbid  future 
consolidations  of  that  character;  that  a  charter  contract 
empowering  a  bank  to  issue  non-taxable  stock  could  be 
revoked  at  any  time  as  to  future  stock  issues;  and  that 
even  the  power  to  regulate  rates  could  not  be  given  up 
by  contract  for  a  term  grossly  unreasonable  in  point  of 
time  (34). 

From  these  decisions  and  dicta  it  appears  that  the 
subjects  concerning  which  a  state  may  not  irrevocably 
contract  away  its  governmental  powers  are  considerably 
more  extensive  than  the  public  health,  morals,  and  safety. 
Probably  the  doctrine  is  or  will  come  to  be  that  no  state 
may  make  an  irrevocable  contract  substantially  impair- 


(33)  146  U.  S.,  387. 

(34)  Louisville  &  Nashville  R.  R.  Co.  v.  Kentucky,  161  U.  S.,  677; 
Bank  of  Commerce  v.  Tennessee,  163  U.  S.,  416;  Home  Telephone  Co. 
V.  Ix)fi  Angeles,  211  U.  S.,  265,  273. 


FUNDAMENTAL  RIGHTS  243 

ing  its  governmental  powers  in  respect  to  any  matter 
seriously  affecting  the  public  welfare. 

§  243.  Private  contracts  that  affect  the  public.  How- 
ever it  may  be  with  contracts  to  which  the  public  is  a 
party,  represented  by  the  state  or  some  part  of  it,  there 
is  no  doubt  that  private  individuals  cannot  by  contract 
prevent  the  legislature  from  regulating  their  future  re- 
lations to  the  public.  For  instance,  if  A  contracts  wilh  B 
to  sell  liquor  in  Iowa  for  ten  years,  this  will  not  affect 
Iowa's  right  to  prohibit  the  sale  of  liquor  in  the  state. 
If  two  street  railroad  companies  validly  agree  that  each 
will  charge  ten  cent  fares,  this  cannot  prevent  the  legis- 
lature from  reducing  the  rates  to  five  cents  (35).  If  A 
and  B,  owners  of  land  on  a  certain  creek,  contract  not  to 
obstruct  the  creek,  this  will  not  prevent  the  legislature 
from  authorizing  A  to  erect  a  dam  at  the  place  for  public 
purposes  (36).  The  difference  between  the  cases  just 
mentioned  and  a  case  where  the  legislature  might  try 
to  reduce  the  interest  on  a  loan  already  made,  is  that  in 
the  latter  case  the  rate  of  interest  paid  on  a  debt  affects 
primarily  the  parties  to  the  contract,  and  the  interests 
of  the  general  public  are  not  substantially  concerned  with 
it.  Where  it  is  the  law,  at  the  time  the  private  contract 
is  made,  that  the  debtor  may  be  imprisoned  for  non- 
payment, or  that  absolutely  all  of  his  property  may  be 
sold  to  satisfy  the  debt,  the  legislature  may  still  abolish 
imprisonment  for  debt,  and  exempt  from  execution  such 


(35)     Buffalo  East  Side  R.  R.  Co.  v.  Buffalo  Street  R.  R.  Co.,  Ill 
^.  Y.,  132. 
>      (86)     Manigault  v.  Springs,  199  U.  S.,  473. 


244  CONSTITUTIONAL  LAW 

tools  and  necessary  property  as  may  prevent  the  debtor 
from  becoming  a  charge  upon  the  community  (37).  This 
is  because  the  public  has  an  interest  in  human  freedom 
and  in  preventing  pauperism.  It  has  no  such  substantial 
interest  in  the  teinns  of  pecuniary  compensation  for  a 
loan. 

§  244.  Reserved  power  of  states  to  repeal  corporate 
charters.  After  the  Dartmouth  College  case  the  American 
states  began  by  constitutions  and  statute  to  forbid  the 
grant  to  corporations  of  irrevocable  charters  or  tax  ex- 
emptions. This  has  been  continued  until  today  such 
grants  are  forbidden  by  the  constitutions  of  almost  all 
American  states.  This  reserved  power  to  alter  or  repeal 
the  corporate  charter  is  of  course  a  part  of  the  obliga- 
tion of  the  original  charter  contract,  if  indeed  that  can  be 
called  a  contract  which  may  be  revoked  by  one  of  the 
parties  at  pleasure.  Where  this  reserved  power  of  revo- 
cation has  been  exercised,  the  courts  have  been  required 
to  pass  upon  its  effect.  In  one  case  Massachusetts  in- 
corporated a  street  railroad  and  empowered  it  to  haul 
freight  through  the  streets  of  Boston.  Afterwards,  in 
the  exercise  of  the  state's  reserved  power,  its  charter 
was  repealed  and  a  new  company  was  incorporated  to  do 
its  business.  The  effect  of  this  repeal  was  stated  by  the 
Supreme  Court  as  follows: 

''One  obvious  effect  of  the  repeal  of  a  statute  is  that 
it  no  longer  exists.  Its  life  is  at  an  end.  Whatever  force 
the  law  may  give  to  transactions  into  which  the  corpora- 
tion entered  and  which  were  authorized  by  the  charter 


(37)     Von  Hoffman  v,  Quincy,  4  Wall.,  535,  553. 


FUNDAMENTAL  RIGHTS  245 

while  in  force,  it  can  originate  no  new  transactions  de- 
pendent on  the  power  conferred  by  the  charter.  .  .  . 
If  the  essence  of  the  grant  of  the  charter  be  to  operate 
a  railroad,  and  to  use  the  streets  of  the  city  for  that  pur- 
pose, it  can  no  longer  so  use  the  streets  of  the  city.  In 
short,  whatever  power  is  dependent  solely  upon  the  grant 
of  the  charter,  and  which  could  not  be  exercised  by  un- 
incorporated private  persons  under  the  general  laws  of 
the  state,  is  abrogated  by  the  repeal  of  the  law  which 
granted  these  special  rights, 

''Personal  and  real  property  acquired  by  the  corpora- 
tion during  its  lawful  existence,  rights  of  contract,  or 
choses  in  action  so  acquired,  and  which  do  not  in  their 
nature  depend  upon  the  general  powers  conferred  by  the 
charter,  are  not  destroyed  by  such  a  repeal;  and  the 
courts  may,  if  the  legislature  does  not  provide  some 
special  remedy,  enforce  such  rights  by  the  means  within 
their  power.  The  rights  of  the  share-holders  of  such 
a  corporation,  to  their  interest  in  its  property,  are  not 
annihilated  by  such  a  repeal,  and  there  must  remain  in 
the  courts  the  power  to  protect  those  rights"  (38). 

§  245.    Protection  of  property  acquired  before  repeal. 

A  striking  instance  of  the  above  doctrine,  which  protects 
property  acquired  by  the  use  of  corporate  powers  even 
after  the  corporate  powers  themselves  are  repealed,  oc- 
curred in  New  York.  The  legislature  granted  a  repeal- 
able  charter  to  a  corporation  which  was  given  power  to 
acquire  a  street  railway  franchise  from  New  York  city, 


(S8)     Greenwood  v.  Marginal  Freight  Co.,  105  U.  S.,  13,  18-19,  21. 


246  CONSTITUTIONAL  LAW 

if  one  could  be  obtained  from  that  municipality.  This 
franchise,  under  the  New  York  constitution,  could  be 
acquired  only  from  the  city,  and  no  state  law  made  such 
a  franchise  repealable.  By  gross  bribery  the  corpora- 
tion acquired  the  Broadway  street  railway  franchise 
from  New  York  city.  Upon  the  discovery  of  the  facts 
the  charter  of  the  corporation  was  revoked  by  the  legis- 
lature, and  several  of  the  participants  in  the  bribery 
were  sent  to  the  penitentiary.  Most  of  the  corporate  stock 
at  this  time  was  in  the  hands  of  innocent  stockholders, 
and  it  was  held  that  the  Broadway  franchise,  an  irrepeal- 
able  contract  of  great  value,  was  part  of  the  property 
of  the  defunct  corporation  that  survived  for  the  benefit 
of  its  stockholders.  The  powers  of  the  corporation 
ceased  upon  its  repeal,  but  the  Broadway  franchise,  not 
being  a  power  granted  to  the  corporation  by  the  state, 
was  not  revoked  and  could  not  be  under  the  Federal 
Constitution  (39).  It  may  thus  readily  happen  that  a 
corporation  with  a  repealable  charter  may  own  as  prop- 
erty an  irrepealable  franchise.  State  constitutions  that 
forbid  all  irrepealable  grants  to  corporations  by  the 
state,  have  never  gone  so  far  as  to  forbid  all  such  grants 
by  municipalities,  though  such  grants  are  commonly  lim- 
ited to  terms  of  years. 

§  246.  Effect  of  state  bankruptcy  laws.  It  was  early 
admitted  that  if  a  state  bankruptcy  law  was  in  force 
when  a  contract  was  made  in  that  state,  the  provisions  of 
the  bankruptcy  law  became  a  part  of  the  obligation  of 
the  contract,  so  that  the  latter  was  not  impaired  by  the 


(39)     People  v.  OBrien,  111  N.  Y.,  L 


FUNDAMENTAL  RIGHTS  247 

discharge  of  the  debtor  in  bankruptcy  according  to  the 
provisions  of  this  law  (40).  Where  both  the  debtor  and 
creditor  were  citizens  of  the  state  having  the  bankruptcy 
law  and  in  which  the  contract  was  made,  the  matter  was 
free  from  difficulty.  A  serious  controversy  arose  over 
cases  where  the  parties  were  citizens  of  different  states. 
Suppose  the  contract  were  made  in  New  York  between  a 
creditor  living  in  Kentucky  and  a  New  York  debtor,  the 
New  York  bankruptcy  law  being  then  in  force.  If  the 
Kentuckian  leaves  New  York  and  the  New  Yorker  then 
is  discharged  from  his  debt  by  a  New  York  proceeding 
in  bankruptcy  to  which  the  Kentuckian  is  not  a  party, 
does  this  discharge  bind  the  Kentuckian?  The  Federal 
courts  finally  held  it  did  not,  probably  not  because  the 
discharge  impaired  the  obligation  of  a  contract,  which  it 
could  hardly  do  because  not  being  a  subsequent  law;  but 
because  jurisdiction  over  the  Kentuckian  is  necessary 
in  such  a  proceeding  (41)  to  affect  his  property,  the  debt 
due  him. 

As  regards  state  bankruptcy  laws,  then,  the  result  of 
the  decisions  is  this:  A  state  bankruptcy  law  can  dis- 
charge only  contracts  made  in  the  state,  between  citizens 
of  that  state,  and  subsequent  to  the  bankruptcy  law.  Citi- 
zens of  other  states  can  only  be  affected  by  a  discharge 
in  bankruptcy  when  they  become  parties  thereto. 

§  246a.  Foreign  suit  on  contract.  As  regards  con- 
tracts made  in  one  state,  but  sued  upon  and  enforced 


(40)  Ogden  v.  Saunders,  12  Wheat.  213. 

(41)  Ogden  v.  Saunders,  12  Wheat,  213;  Baldwin  v.  Hale.  1  Wall., 
223. 


248  CONSTITUTIONAL  LAW 

in  another  state,  it  seems  clear  that  the  creditor  cannot 
demand  that  the  latter  state  give  him  the  same  remedies 
that  he  would  have  been  entitled  to  in  the  state  where  the 
contract  was  made.  Anyone  who  chooses  or  is  compelled 
to  bring  suit  outside  of  his  own  jurisdiction  must  ex- 
pect such  remedies  only  as  are  afforded  by  the  law  of 
the  place  where  he  sues.  This  law  was  never  a  part  of 
the  obligation  of  the  contract  made  elsewhere,  and  so  the 
creditor  from  another  jurisdiction  must  take  the  domes- 
tic law  and  remedies  as  he  finds  them  (42). 

§  247.  Foreign  contracts.  The  contract  clause  of  the 
Constitution  does  not  apply  to  contracts  made  in  a  for- 
eign country  with  corporations  of  that  country,  even 
though  suit  may  be  brought  upon  such  contracts  in  the 
United  States.  Legislation  of  the  foreign  government, 
impairing  the  obligation  of  the  contract,  will  be  respected 
here  (43). 

§  248.  Laws  increasing  the  obligation  of  contracts. 
State  legislation  that  provides  a  better  remedy  upon  a 
contract,  or  a  more  certain  enforcement,  or  which  vali- 
dates a  void  contract  does  not  violate  this  clause  of  the 
Constitution  (44).  Such  laws  certainly  do  not  impair  the 
obligations  of  contracts,  though  they  may  perhaps  be 
arbitrary  or  unjust,  and  may  violate  other  constitutional 
provisions,  such  as  the  prohibition  against  taking  prop- 
erty without  due  process  of  law. 


(42)  Bank  of  United  States  v.  Donnally,  8  Pet,  361. 

(43)  Canada  Southern  Railway  Co.  v.  Gebhard,  109  U.  S.,  527. 

(44)  Satterlee  v.  Mathewson,  2  Pet.,  380. 


PART   III. 

THE  FEDERAL  GOVERNMENT. 

CHAPTER  Xn. 
FEDERAL  POWERS  AND  THEIR  EXERCISE. 

§  249.  General  principles  of  construction:  Strict  ver- 
sus liberal.  As  has  already  been  said  (§§27,  28)  the  two 
great  principles  of  construction  applicable  to  the  powers 
of  the  United  States  are,  first,  that  it  can  exercise  no 
powers  except  those  expressly  or  by  fair  implication 
granted  to  it  in  the  Constitution;  and  second,  that  over 
such  granted  powers  it  has  absolute  control,  and  its  legis- 
lation thereunder  is  paramount  to  all  conflicting  state 
laws.  The  importance  of  these  principles  demands  some 
further  discussion. 

Political  parties  in  this  country  have  long  divided 
upon  the  question  of  interpreting  the  Constitution  strictly 
or  liberally.  These  distinctions  are  political  in  their 
nature.  The  duty  of  the  judicial  branch  of  the  govern- 
ment is  shown  by  the  following  quotation  from  Chief 
Justice  Marshall: 

"This  instrument  contains  an  enumeration  of  powers 
expressly  granted  by  the  people  to  their  government.  It 
has  been  said  that  these  powers  ought  to  be  construed 
strictly.    But  why  ought  they  to  be  so  construed?    Is 

249 


250  CONSTITUTIONAL  LAW 

there  one  sentence  in  the  Constitution  wliich  gives  coun- 
tenance to  this  rule?  In  the  last  of  the  enumerated  pow- 
ers, that  which  grants,  expressly,  the  means  for  can-ying 
all  others  into  execution.  Congress  is  authorized  *to  make 
all  laws  which  shall  be  necessary  and  proper'  for  the 
purpose.  But  this  limitation  on  the  means  which  may  be 
used,  is  not  extended  to  the  powers  which  are  conferred; 
nor  is  there  one  sentence  in  the  Constitution,  which  has 
been  pointed  out  by  the  gentlemen  of  the  bar,  or  which  we 
have  been  able  to  discern,  that  prescribes  this  rule.  We  do 
not,  therefore,  think  ourselves  justified  in  adopting  it. 
What  do  gentlemen  mean  by  a  strict  construction?  If 
they  contend  only  against  that  enlarged  construction 
which  would  extend  words  beyond  their  natural  and 
obvious  import,  we  might  question  the  application  of  the 
term,  but  should  not  controvert  the  principle.  If  they 
contend  for  that  narrow  construction  which,  in  support 
of  some  theory  not  to  be  found  in  the  Constitution,  would 
deny  to  the  government  those  powers  which  the  words  of 
the  grant,  as  usually  understood,  impoii;,  and  which  are 
consistent  with  the  general  views  and  objects  of  the  in- 
strument; for  that  narrow  construction,  which  would 
cripple  the  government,  and  render  it  unequal  to  the  ob- 
jects for  which  it  is  declared  to  be  instituted,  and  to  which 
the  powers  given,  as  fairly  understood,  render  it  com- 
petent; then  we  cannot  perceive  the  propriety  of  this 
strict  construction,  nor  adopt  it  as  the  rule  by  which  the 
Constitution  is  to  be  expounded.  ...  As  men  whose  in- 
tentions require  no  concealment,  generally  employ  the 
words  which  most  directly  and  aptly  express  the  ideas 


THE  FEDERAL  GOVERNMENT        251 

they  intend  to  convey,  the  enlightened  patriots  who 
framed  our  Constitution,  and  the  people  who  adopted  it, 
must  be  understood  to  have  employed  words  in  their 
natural  sense,  and  to  have  intended  what  they  have  said. 
If,  from  the  imperfection  of  human  language,  there  should 
be  serious  doubts  respecting  the  extent  of  any  given 
power,  it  is  a  well-settled  rule  that  the  objects  for  which 
it  was  given,  especially  when  those  objects  are  expressed 
in  the  instrument  itself,  should  have  great  influence  in 
the  construction.  .  .  .  We  know  of  no  rule  for  construing 
the  extent  of  such  powers,  other  than  is  given  by  the 
language  of  the  instrument  which  confers  them,  taken  in 
connection  with  the  purposes  for  which  they  were  con- 
ferred" (1). 

§  250.  Implied  powers.  In  McCullojch  v.  Maryland 
(2)  the  question  arose  whether  Congress  coaild  charter 
a  national  bank.  Congress  has  express  power  to  collect 
taxes  and  borrow  money.  Was  the  power  to  create  a 
banking  corporation  fairly  inferable  from  these?  Chief 
Justice  Marshall  said: 

"Among  the  enumerated  powers,  we  do  not  find  that 
of  establishing  a  bank  or  creating  a  corporation.  But 
there  is  no  phrase  in  the  instrument  which,  like  the 
Articles  of  Confederation  excludes  incidental  or  implied 
powers ;  and  which  requires  that  everything  granted  shall 
be  expressly  and  minutely  described.  ...  A  constitution, 
to  contain  an  accurate  detail  of  all  the  subdivisions  of 
which  its  great  powers  will  admit  and  of  all  the  means 


(1)  Gibbons  v.  Ogden,  9  Wheato-n,  1,  187  9. 

(2)  4  Wheat,  31G. 


252  CONSTITUTIONAL  LAW 

by  which  they  may  be  carried  into  execution,  would  par- 
take of  the  prolixity  of  a  legal  code,  and  could  scarcely 
be  embraced  by  the  human  mind.  It  would  probably 
never  be  understood  by  the  public.  Its  nature,  there- 
fore, requires  that  only  its  great  outlines  should  be 
marked,  its  important  objects  designated,  and  the  minor 
ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  the  objects  themselves.  ...  In  considering 
this  question,  then,  we  must  never  forget  that  it  is  a  con- 
stitution we  are  expounding.  .  .  . 

'The  power  of  creating  a  corporation  is  never  used 
for  its  own  sake,  but  for  the  purpose  of  effecting  some- 
thing else.  No  sufficient  reason  is,  therefore,  perceived, 
why  it  may  not  pass  as  incidental  to  those  powers  which 
are  expressly  given,  if  it  be  a  direct  mode  of  executing 
them.  ...  [It  is  urged]  Congress  is  not  empowered  to 
make  all  laws,  which  may  have  relation  to  the  powers 
conferred  on  the  government,  but  such  only  as  may  be 
'necessary  and  proper'  (3)  for  carrying  them  into  exe- 
cution [and],  that  it  excludes  choice  of  means  and  leaves 
to  Congress,  in  each  case,  that  one  choice  most  direct 
and  simple.  .  .  .  Is  it  true,  that  this  is  the  sense  in  which 
the  word  'necessary'  is  always  used?  Does  it  always  im- 
port an  absolute  physical  necessity,  so  strong  that  one 
thing,  to  which  another  may  be  termed  necessary,  can- 
not exist  without  that  other?  We  think  it  does  not.  If 
reference  be  had  to  its  use  in  the  common  affairs  of  the 
world,  or  in  approved  authors,  we  find  that  it  frequently 


(3)     Const,  Art.  I.  sec.  8,  §  18. 


THE  FEDERAL  GOVERNMENT        253 

imports  no  more  than  that  one  thing  is  convenient,  or 
useful,  or  essential  to  another.  To  employ  the  means 
necessary  to  an  end  is  generally  understood  as  employing 
any  means  calculated  to  produce  the  end,  and  not  as  be- 
ing confined  to  those  single  means,  without  which  the 
end  would  be  entirely  unattainable.  .  .  .  We  think  the 
sound  construction  of  the  Constitution  must  allow  to  the 
national  legislature  that  discretion,  with  respect  to  the 
means  by  which  the  powers  it  confers  are  to  be  carried 
into  execution,  which  will  enable  that  body  to  perform 
the  high  duties  assigned  to  it  in  the  manner  most  bene- 
ficial to  the  people.  Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and 
spirit  of  the  Constitution,  are  constitutional. ' ' 

The  creation  of  a  national  bank  was  thus  upheld. 
Similarly,  although  the  United  States  is  nowhere  ex- 
pressly given  the  power  of  eminent  domain,  yet  it  may 
exercise  it  in  the  execution  of  other  express  powers  (4). 

§  251.  Powers  implied  from  groups  of  other  powers. 
**It  is  not  indispensable  to  the  existence  of  any  power 
claimed  for  the  Federal  government  that  it  can  be  found 
specified  in  the  words  of  the  Constitution,  or  clearly  and 
directly  traceable  to  some  one  of  the  specified  powers.  Its 
existence  may  be  deduced  fairly  from  more  than  one  of 
the  substantive  powers  expressly  defined,  or  from  them 
all  combined.    It  is  allowable  to  group  together  any  num- 


(4)  Kohl.  V.  United  States,  91  U.  S.,  367.  The  preamble  to  the 
Ck)iistitution  confers  no  power  uiwn  the  United  States.  Jacobson  v. 
Mass.,  191  U.  S.  11,  22. 

Vol.  XII— 18 


2o4  CONSTITUTIONAL  LAW 

ber  of  them  and  infer  from  them  all  that  the  power 
claimed  has  been  conferred"  (5). 

Thus,  the  Constitntion  gives  the  United  States  express 
power  to  punish  only  four  cranes,  counterfeiting,  felonies 
committed  on  the  high  seas,  offenses  against  the  law  of 
nations,  and  treason;  but  Congress  has  of  course  implied 
power  to  punish  the  breaking  of  any  Federal  law,  and  to 
protect  prisoners  in  its  custody  (6).  A  very  strong  in- 
stance of  implied  Federal  powers  are  the  various  acts 
making  paper  a  legal  tender  money.  See  §§  310,  311,  be- 
low. Instances  of  other  implied  powers  will  be  found  in 
the  sections  upon  various  Federal  powers  following  this. 

§  252.  Exclusive  and  concurrent  powers.  When  a 
power  is  granted  to  the  United  States  in  the  Constitution 
is  it  therefore  denied  to  the  states  (exclusive  power),  or 
may  they  also  exercise  it  so  long  as  their  laws  are  not  in- 
consistent with  Federal  laws  on  the  subject  (concurrent 
power)  ?  The  accepted  rule  has  been  judicially  stated  as 
follows:  "The  states  may  exercise  concurrent  or  inde- 
pendent power  in  all  cases  but  three :  1.  Where  the  power 
is  lodged  exclusively  in  the  Federal  Constitution.  2. 
Where  it  is  given  to  the  United  States  and  prohibited  to 
the  states.  3.  Where,  from  the  nature  and  subjects  of  the 
power,  it  must  necessarily  be  exercised  by  the  Federal 
government  exclusively"  (7). 

An  instance  of  the  first  case  is  the  power  to  borrow 
money  on  the  credit  of  the  United  States.     The  states 


(5)  Legal  Tender  Cases,  12  Wall.,  457,  534. 

(6)  Logan  v.  United  States,  144  U.  S.,  263. 

(7)  Oilman  v.  Philadelphia,  3  Wall.,   713. 


THE  FEDERAL  GOVERNMENT        255 

never  had  such  a  power,  it  being  lodged  exclusively  in 
the  Constitution.  An  instance  of  the  second  case  is  the 
power  to  tax  imports.  The  states  originally  had  this,  but 
the  Constitution  gives  it  to  Congress  and  prohibits  the 
states  to  exercise  it.  An  instance  of  the  third  class  is  the 
power  of  naturalization,  which  the  states  once  had,  which 
is  given  to  Congress,  but  is  not  expressly  prohibited  to 
the  states.  The  nature  of  the  power  is  such  that  Congress 
alone  may  exercise  it.    See  §  88,  above. 

Instances  of  powers  that  are  concurrent  because  not 
falling  within  any  of  these  classes  are  the  power  to  pass 
bankruptcy  laws  (8),  to  tax,  and  to  make  certain  regula- 
tions of  commerce  (see  §  284,  below). 

§  253.  Purposes  for  which  Federal  powers  may  be 
exercised.  When  it  is  said  that  Congress  has  complete 
control  over  all  powers  granted  to  it,  does  this  mean  that 
Congress  may  exercise  such  powers  for  any  purpose,  or 
to  secure  any  result  that  it  pleases;  or  can  even  the 
granted  powers  be  exercised  only  for  some  purposes 
within  the  scope  of  the  Federal  powers?  An  illustration 
will  show  how  important  is  this  question.  Congress  is 
given  by  the  Constitution  no  power  directly  to  regulate 
lotteries  in  a  state.  If  a  state  charters  a  lottery  and  makes 
it  a  part  of  its  revenue  system,  it  is  acting  wholly  within 
its  reserved  powers,  and  Congress  cannot  directly  inter- 
fere. Now  Congress  has  control  of  the  post-ofifice.  May 
Congress  exercise  its  postal  powers  to  exclude  lottery 
matter  from  the  mails — not  for  the  sake  of  the  post-oflBce, 
nor  in  the  exercise  of  any  other  Federal  power,  like  that 


(8)     Sturges  v.  Crowninshield,  4  Wheat,  117. 


256  CONSTITUTIONAL  LAW 

of  regulating  commerce  or  passing  bankruptcy  laws,  but 
solely  in  order  to  hamper  lotteries  in  a  state!  It  has  been 
held  that  this  may  be  done  (9).  Likewise  it  has  been 
held  that  Congress  may  forbid  the  carnage  from  state  to 
state  of  lotterj'  tickets  under  its  power  to  regulate  inter- 
state commerce,  even  though  this  power  be  here  exercised 
for  no  strictly  commercial  purpose,  but  solely  to  prevent 
the  moral  and  economic  evils  of  lotteries  in  the  state. 
''The  power  of  Congress  to  regulate  commerce  among 
the  states  is  plenary,  is  complete  in  itself,  and  is  subject 
to  no  limitations  except  such  as  may  be  found  in  the  Con- 
stitution" (10). 

The  most  far-reaching  application  of  this  principle  is 
in  the  recent  case  of  McCray  v.  United  States  (11),  where 
the  United  States  imposed  a  tax  upon  the  manufacture 
of  artificially  colored  oleomargarine  so  high  (as  was  as- 
sumed in  argument)  as  to  prevent  its  manufacture  alto- 
gether. The  Supreme  Court  said  that  the  Constitution 
gave  Congress  power  to  lay  taxes  and  that  the  purpose 
for  which  they  were  laid  could  not  be  investigated  by  the 
court,  that  being  solely  in  the  discretion  of  Congress. 
Under  the  operation  of  this  principle  there  is  almost  no 
business  or  occupation  in  the  United  States  (except  per- 
haps managing  land)  which  cannot  be  effectively  regu- 
lated by  Congress.  The  power  to  exclude  from  the  post- 
oflfice  and  from  interstate  commerce,  and  to  tax  out  of 
existence  enables  Congress  virtually  to  prohibit  in  a 
state  matters  of  the  most  local  and  domestic  nature,  pro- 


(9)  In  re  Rapier,  143  U.  S.,  110. 

(10)  Lottery  Case,  188  U.  S.,  321,  356. 

(11)  195  U.  S..  27      See  also  Ellis  v.  V    S..  206  U.  S.  246,  255-54 


THE  FEDERAL  GOVERNMENT        257 

vided  that  a  majority  of  Congress  wishes  to  prevent 
them  in  the  country  at  large. 

§  254.  Prohibitions  upon  the  exercise  of  Federal 
powers.  In  various  parts  of  the  Constitution,  notably  in 
Article  I,  section  9,  and  in  the  amendments  there  are 
various  general  prohibitions  upon  the  Federal  govern- 
ment. These  prohibitions  limit  the  exercise  of  all  powers 
to  which  they  are  applicable.  Thus,  while  the  United 
States  has,  as  against  the  states,  full  power  over  the  post- 
office  and  interstate  commerce,  yet  these  powers  must  be 
so  exercised  as  not  to  violate  these  general  prohibitions, 
like  those  forbidding  unreasonable  searches  and  seizures 
and  the  taking  of  property  without  due  process  of  law 
in  the  Fourth  and  Fifth  Amendments.  The  scope  of 
these  general  prohibitions  or  guarantees  is  fully  consid- 
ered in  Chapters  V  to  X,  above. 

§  255.  Reserved  powers  of  the  states.  ' '  The  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively  or  to  the  people"  (12). 

From  the  nature  of  the  Federal  government,  being 
one  of  delegated  powers,  it  is  not  likely  that  this  provi- 
sion places  any  additional  constitutional  limitation  upon 
Federal  action.  Some  authority,  express  or  implied, 
must  be  found  in  the  Constitution  for  all  Federal  activi- 
ties. In  a  considerable  number  of  instances  acts  of  Con- 
gress have  been  held  invalid  because  not  falling  fairly 
within  any  grant  of  the  Constitution. 


(12)     Const.,  Amend.  X. 


258  CONSTITUTIONAL  LAW 

Thus  Congress  has  no  power  to  forbid  the  sale  in  a 
state  of  dangerous  ilhmiinating  oil;  or  to  forbid  the 
wrongful  use,  in  the  internal  commerce  of  a  state,  of 
registered  trade-marks;  or  to  regulate  the  liability  of 
railroad  employees  for  accidents  occurring  in  the  internal 
commerce  of  a  state ;  or  to  forbid  persons  in  a  state  from 
harboring  alien  prostitutes,  when  not  done  in  connection 
with  their  coming  into  the  United  States  (13).  In  none 
of  these  cases  was  there  anything  to  be  found  in  the 
Constitution  expressly  or  impliedly  authorizing  Congress 
to  deal  with  the  subject  matter  in  question. 

It  thus  appears  that  acts  of  Congress  may  be  invalid 
either  (a)  because,  although  in  the  exercise  of  a  granted 
power,  they  exercise  it  in  a  forbidden  way;  or  (b)  because 
they  are  not  in  the  exercise  of  any  granted  power. 


(13)  rnited  States  v.  DeWitt.  9  Wall.,  41;  Trade  Mark  Cases,  100 
U.  S.,  25;  Howard  v.  Illinois  Central  Railroad,  207  U.  S.,  463;  Keller 
V.  United  States,  213  T.  S.,  138. 


CHAPTER  XIII. 
TERRITORIES,  DEPENDENCIES,  AND  NEW  STATES. 

§  256.  Cession  of  western  lands  to  United  States. 
When  the  Constitution  was  adopted  there  had  already 
been  ceded  to  the  United  States  a  great  expanse  of  terri- 
tory between  the  Mississippi  river  and  the  western  boun- 
dary of  the  thirteen  original  states.  This  territory  had 
been  previously  claimed,  to  a  various  extent,  by  several 
of  the  states,  and  its  cession  to  the  general  government 
was  required  as  a  condition  to  the  accession  of  the  smaller 
states  to  the  Confederation.  They  felt  that  such  great 
additions  to  the  bulk  of  their  larger  neighbors  would 
make  relations  between  them  upon  anything  like  equal 
terms  impossible;  hence  their  insistence,  particularly 
that  of  Maryland,  that  the  larger  states  cede  their  claims 
to  the  western  land  to  Congress. 

Article  IV,  section  3,  of  the  Constitution  contains  pro- 
visions concerning  this  territory  and  the  mode  in  which 
new  states  may  be  admitted  to  the  Union.  These  provi- 
sions are  quoted  below  in  their  proper  places. 

§  257.  Implied  powers  to  annex  territory.  The  Con- 
stitution contains  no  express  grant  of  power  to  Congress 
to  annex  new  territory  to  the  country,  and  when  the  great 
Louisiana  purchase  was  so  suddenly  made  in  1803  there 
was  much  discussion  of  its  constitutionality.    Whatever 

259 


260  CONSTITUTIONAL  LAW 

doubts  were  then  felt  have  long  since  disappeared,  and 
whenever  our  courts  have  referred  to  the  matter  they 
have  declared  that  the  power  of  the  United  States  to 
make  war  and  to  make  treaties  included  the  power  to 
acquire  territory  in  either  of  these  ways  (1).  The  right 
of  the  United  States  to  acquire  territory  by  discovery 
and  occupation  has  also  been  judicially  affirmed  (2). 
This  is  to  be  implied  from  the  complete  control  over  our 
external  relations  given  to  Congress  by  the  Constitution. 
The  power  over  these  relations  is  denied  to  the  states 
and  now  rests  in  the  United  States,  except  is  so  far  as  the 
exercise  of  particular  powers  may  be  expressly 
prohibited. 

Moreover,  it  is  for  the  political  departments  of  the 
government,  the  legislative  and  executive,  to  determine 
who  is  the  sovereign  of  any  territory  whatever,  and  their 
decision  is  binding  upon  the  courts.  If  these  depart- 
ments recognize  certain  territory  as  under  the  jurisdic- 
tion of  the  United  States,  the  political  rights  of  the 
United  States  there  can  not  be  discussed  in  American 
courts.  The  same  is  true  if  some  other  nation  is  thus 
recognized  as  entitled  to  jurisdiction.  Recent  decisions 
illustrating  this  have  been  rendered  concerning  the  Pan- 
ama Canal  Zone  and  the  Isle  of  Pines  (3). 

§  258.  Federal  sovereignty  in  territories.  Tlie  Con- 
stitution, Article  IV,  section  3,  §2,  provides: 


(1)  American  Insurance  Co.  v.  Canter,  1  Pet,  511,  542. 

(2)  Jones  v.  United  States,  137  U.  S.,  202. 

(3)  Wilson  V.  Shaw,  204  U.  S.,  24;  Pearcy  v,  Stranahan,  205  U.  S., 
257. 


THE  FEDERAL  GOVERNMENT        261 

"The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States,  or  of  any 
particular  state." 

It  was  early  held  that  the  United  States  had  full  gov- 
ernmental power  over  the  territories,  implied  from  the 
power  to  acquire  the  territory  itself,  as  well  as  expressly 
conferred  in  the  clause  above  quoted  (4).  In  the  states, 
the  national  government  is  sovereign  only  in  regard  to 
subjects  committed  to  it  by  the  Constitution.  On  all 
other  matters  the  state  governments  are  sovereign.  In 
the  territories  the  United  States  unites  the  powers  of 
both  national  and  state  governments.  Congress  may 
govern  the  territories  by  its  own  direct  legislation,  or  it 
may  delegate  all  or  part  of  tliis  legislative  power  to  terri- 
torial legislatures,  commissions,  or  even  executives  and 
judges  (5). 

§  259.  Application  in  territories  of  constitutional  pro- 
hibitions. The  only  serious  questions  concerning  Federal 
power  over  the  territories  have  been  as  to  the  applicabi]- 
ity  there  of  certain  constitutional  limitations  uponjthe 
powers  of  the  United  States.  In  various  parts  of  the 
Constitution,  particularly  in  the  first  ten  amendments, 


(4)  American  Insurance  Co.  v.  Canter,  1  Pet.  511;  Mormon  Church 
V.  United  States,  136  U.  S.,  1. 

(5)  Dorr  v.  United  States,  195  U.  S.,  138.  A  full  history  of  the 
government  of  United  States  territories  before  1871  is  given  in  Clinton 
V.  Englebrecht,  13  Wall.,  434. 


262  CONSTITUTIONAL  LAW 

there  are  a  variety  of  prohibitions  upon  tlie  actions  of  the 
United  States  government. 

(a)  By  the  express  language  of  some  of  these  prohibi- 
tions they  limit  the  power  of  the  government  only  in  re- 
spect to  the  states.  Such  instances  are  "no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  state,"  and 
"no  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  state  over  those  of 
another"  (6). 

(b)  The  express  language  of  at  least  one  prohibition 
limits  the  power  of  the  Federal  government  ever^^where 
within  its  jurisdiction.  *' Neither  slavery  nor  involun- 
tary servitude  .  .  .  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdiction"  (7). 

(c)  Some  prohibitions  expressly  apply  only  within 
the  '* United  States."  For  instance,  "All  duties,  imposts, 
and  excises  shall  be  uniform  throughout  the  United 
States"  (8).  The  guarantee  of  citizenship  by  birth  is 
in  similar  language;  "All  persons  bom  ...  in  the 
United  States  .  .  .  are  citizens  of  the  United 
States"  (9). 

(d)  The  great  majority  of  the  prohibitions  upon  the 
United  States  government  do  not  expressly  state  or 
clearly  show  to  what  territory  they  are  applicable.  This 
includes  all  of  the  first  nine  amendments  which  consti- 
tute the  Federal  bill  of  rights. 


(6)  Art.  I,  sec.  9,  §§  5  and  6. 

(7)  Amend.  XIII. 

(8)  Art.  I,  sec.  8,  §  1. 

(9)  Amend.  XIV,  sec.  1. 


THE  FEDERAL  GOVERNMENT        263 

§  260.  Spanish  cessions  of  1898.  Power  to  acquire 
"unincorpora.ted"  territory.  The  earlier  acquisitions  of 
territory  by  the  United  States  formed  a  contiguous  body 
of  territory,  all  situated  within  latitudes  readily  inhabit- 
able by  the  white  race, .  and  all  held  with  the  ultimate 
prospect  of  its  being  admitted  to  the  Union  as  states,  as 
each  local  division  of  it  might  become  thus  qualified  in 
property  and  population.  Alaska  alone,  acquired  in  1867, 
was  an  exception  to  this  statement,  but  its  geographical 
location  and  sparseness  of  population  prevented  its  pre- 
senting any  important  political  problems. 

By  the  treaty  of  peace  that  closed  the  Spanish  war  of 
1898  the  United  States  became  the  sovereign  of  an 
Asiatic  archipelago  containing  several  million  inhabi- 
tants of  an  alien  race,  nnused  to  our  customs  and  laws, 
and  apparently  unfitted  for  a  full  measure  of  local  self- 
government.  This  novel  situation  has  compelled  a  care- 
ful inquiry  into  the  constitutional  status  of  territory  ac- 
quired by  the  United  States. 

Before  the  Spanish  war  no  serious  questions  had  arisen 
regarding  the  status  of  te/ritory  acquired  by  the  United 
States  and  not  yet  admitted  to  statehood.  No  decision 
had  ever  turned  upon  the  question  whether  annexed  ter- 
ritory became  an  integral  part  of  the  United  States,  or 
was  merely  held  as  a  dependency,  like,  for  instance,  an 
English  colony.  In  1820  Chief  Justice  Marshall  had 
uttered  a  dictum  to  the  effect  that  the  United  States  was 
the  name  of  our  great  republic,  composed  of  states  and 
territories,  and  that  the  District  of  Columbia  and  the 
territory  west  of  tbe  Missouri  was  not  less  within  the 


2G4  CONSTITUTIONAL  LAW 

United  States  than  Maryland  or  Pennsylvania  (9a) ;  but 
the  matter  received  no  thorough  consideration  until  after 
the  Spanish  war. 

Porto  Kico  and  the  Philippines  were  acquired  by 
treaty  from  Spain  with  the  proviso  that ' '  the  civil  rights 
and  political  status  of  the  native  inhabitants.  .  .  . 
shall  be  determined  by  Congress."  Shortly  thereafter 
Congress  passed  an  act  taxing  goods  passing  from  Porto 
Kico  into  the  continental  parts  of  the  United  States.  This 
was  challenged  on  the  ground  that  Porto  Rico  became 
by  annexation  a  part  of  the  United  States,  and  that  the 
Constitution  (Art.  I,  sec.  8,  §1)  required  duties  to  be 
uniform  throughout  the  United  States.  ^K  majority  of 
the  SujDreme  Court  held  that  while  Porto  Eico  ceased  to 
be  a  foreign  country  upon  annexation  (10),  it  did  not 
therebj"  become  at  once  a  part  of  the  United  States.  The 
power  to  acquire  territory  implied  also  the  power  to  pre- 
scribe the  terms  upon  which  it  shall  be  held.  By  treaty 
and  act  of  Congress  annexed  territory  may  be  at  once 
incorporated  into  the  United  States  and  be  as  much  a 
part  of  this  country  as  is  one  of  the  states;  but,  if  the 
political  departments  of  the  government  so  desire,  an- 
nexed teiTitory  may  be  held  and  governed  outside  of  the 
United  States,  virtually  as  a  colony  or  dependency.  Such 
territory  is  in  the  position  of  a  British  colony,  which  is 
neither  foreign  to  Great  Britain  nor  yet  a  part  of  the 
latter.  It  was  held  that  the  territory  acquired  from 
Spain,  under  the  terms  of  the  Spanish  treaty  and  in 


(9a)     Loughborough  v.  Blake,  5  Wheat,  317. 
(10)     De  Lima  v.  Bidwell.  1S2  U.  S..  1. 


THE  FEDERAL  GOVERNMENT        265 

view  of  Congressional  legislation,  occupied  this  position, 
and,  not  being  a  part  of  the  United  States,  Porto  Rican 
duties  need  not  be  uniform  with  those  in  the  United 
States  (11).^^ 

§  261.  Territorial  classification  of  Federal  jurisdiction. 
It  thus  appears  that  territory  within  which  the  United 
States  may  exercise  authority  falls  into  at  least  five  dif- 
ferent classes: 

(a)  The  states  of  the  Union.  Example:  Massachu- 
setts. 

(b)  Annexed  territory  incorporated  into  the  United 
States,  but  not  yet  admitted  to  statehood.  Example: 
Alaska. 

(c)  Annexed  territory  not  yet  incorporated  into  the 
United  States,  but  governed  as  a  dependency.  Example : 
Porto  Rico  and  the  Philippines. 

(d)  Territory  temporarily  occupied  by  the  United 
States,  for  military  or  other  purposes,  but  without  an- 
nexation. Example:  Cuba  after  the  Spanish  war  until 
the  withdrawal  of  the  United  States. 

(e)  Territory  within  the  limits  of  an  organized  for- 
eign country,  over  which  the  latter  permits  the  United 
States  to  exercise  some  jurisdiction.  Example :  The  juris- 
diction exercised  by  the  American  consular  courts  over 
American  citizens  in  certain  undeveloped  countries  like 
China. 

In  each  one  of  these  five  classes  of  territory,  the  ques- 
tion may  be  raised  how  far  constitutional  prohibitions 
upon  governmental  actions  are  applicable.    An  interest- 


(11)     Downes  v.  Bidwell,  182  U.  S.,  244. 


266  CONSTITUTIONx\L  LAW 

ing  series  of  cases,  most  of  them  decided  since  the  Span- 
ish war,  has  furnished  the  material  for  answers. 

§  262.  Prohibitions  applicable  in  states  and  incorpor- 
ated territories,  (a)  All  constitutional  prohibitions  upon 
the  action  of  the  Federal  government  apply  in  the  states. 
This  was  the  principal  object  in  placing  them  in  the  Con- 
stitution. 

(b)  In  the  incorporated  territories  all  constitutional 
prohibitions  apply  to  the  Federal  government,  except 
those  meant  to  be  applicable  to  the  states  only.  For  in- 
stance, the  question  arose  recently  whether  persons  could 
be  tried  for  crime  in  Alaska  without  a  jur^^  (of  twelve 
men)  required  by  the  Sixth  Amendment  to  the  Constitu- 
tion. It  was  held  that  the  terms  of  the  treaty  by  which 
Alaska  was  acquired  and  the  subsequent  legislation  of 
Congress  had  the  effect  of  incorporating  Alaska  into  the 
United  States,  and  that  the  Sixth  Amendment  therefore 
applied,  even  though  it  concerned  merely  a  matter  of 
judicial  procedure  (12).  A  similar  decision  has  been 
made  regarding  the  District  of  Columbia,  which  is  at 
least  in  as  favorable  a  situation  as  incorporated  territory, 
inasmuch  as  it  once  formed  a  part  of  the  state  of  Mary- 
land and  was  then  certainly  a  part  of  the  United 
States  (13). 

§  263.  Judiciary  article  applies  in  states  only.  One 
important  part  of  the  Constitution,  though  not  made  ex- 
pressly applicable  to  the  states  alone,  has  been  held  not 


(12)  Rassmussen  v.  United  States,  197  U.  S.,  516. 

(13)  Oallau  v.  Wilson,  127  U.  S.,  540;  Downes  v.  Bidwell.  182  V. 
S.,  244,  261. 


THE  FEDERAL  GOVERNMENT        267 

to  apply  to  incorporated  territory.  This  is  the  first 
clause  of  the  judiciary  article:  ''The  judicial  power  of 
the  United  States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  The  judges,  both  of 
the  Supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation  which  shall  not  be 
diminished  during  their  continuance  in  office"  (14).  This 
clause  has  always  been  interpreted  as  applying  only  to 
United  States  courts  in  the  states.  In  the  incorporated 
territories  Congress  has  habitually  created  courts  whose 
judges  hold  office  for  short  terms  of  years  instead  of  dur- 
ing good  behavior  (15).  These  territorial  courts  exer- 
cise a  local  territorial  jurisdiction  which  is  derived  from 
the  power  of  Congress  to  govern  the  territories,  not  from 
the  specific  grant  of  judicial  power  to  the  United  States 
in  the  judiciary  article.  The  latter  was  designed  only 
to  regulate  the  exercise  of  Federal  judicial  power  in  the 
states  which  already  had  judicial  systems  of  their  own. 
As  soon  as  a  territory  is  admitted  to  the  Union  as  a 
state  its  foraier  territorial  courts  lose  all  jurisdiction 
whatever,  and  cannot  even  dispose  of  pending  cases  (16). 
§  264.  Unincorporated  territory,  (c)  Unincorporated 
territory,  not  being  a  part  of  the  United  States,  is  of 
course  not  entitled  to  the  benefit  of  such  prohibitions 
upon  Federal  action  as  apply  to  that  action  merely  in 


(14)  Art.  Ill,  sec.  1. 

(15)  American  Insurance  Co.  v.  Canter,  1  Pet.,  511. 

(16)  Benner  v.  Porter,  9  How.,  235. 


26S  CONSTITUTIONAL  LAW 

the  United  States.  Federal  taxes  and  bankruptcy  laws, 
for  instance,  must  be  uniform  throughout  the  United 
States,  but  unincorporated  territory  may  be  treated  dif- 
ferently. Similarly,  the  provision  that  all  persons  born 
in  the  United  States  shall  be  citizens  would  seem  not  to 
apply  to  unincorporated  territory. 

In  Downes  v.  Bidwell  it  was  urged  by  counsel  that  if 
the  United  States  could  annex  territory  without  making 
it  a  part  of  the  United  States,  then  it  would  not  be  bound 
by  any  of  the  prohibitions  of  the  Constitution  and  could 
govern  such  unincorporated  territory  in  any  arbitrary 
manner  it  saw  fit.  These  general  prohibitions  upon  the 
Federal  government  are  contained  mainly  in  Article  I, 
section  9,  and  Amendments  I  to  X,  XIII,  and  XV.  They 
are  not  specifically  confined  to  actions  of  the  United 
States  within  the  United  States,  but  are  general  prohibi- 
tions, as  for  instance  that  Congress  shall  make  no  law 
prohibiting  the  free  exercise  of  religion ;  that  no  one  shall 
be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law;  that  all  criminal  trials  shall  be  by  jury; 
and  the  like. 

On  the  other  hand  it  was  urged  that  if  all  of  these  pro- 
hibitions applied  to  the  United  States  in  the  Philippines, 
for  instance,  it  would  be  very  embarrassing,  as  the  people 
there  were  quite  unaccustomed  to  jury  trials  as  a  part 
of  civil  and  criminal  procedure.  Upon  this  point  Mr. 
Justice  Brown  said : 

"We  suggest,  without  intending  to  decide,  that  there 
may  be  a  distinction  between  certain  natural  rights,  en- 
forced in  the  Constitution  by  prohibitions  against  inter- 


THE  FEDERAL  GOVERNMENT  269. 

ference  with  them,  and  what  may  be  termed  artificial  or 
remedial  rights,  which  are  peculiar  to  om'  own  system  of 
jurisprudence.  Of  the  former  class  are  the  rights  to  one's 
own  religious  opinions  and  to  a  public  expression  of  them, 
or,  as  sometimes  said,  to  worship  God  according  to  the 
dictates  of  one's  own  conscience;  the  right  to  personal 
liberty  and  individual  property;  to  freedom  of  speech 
and  of  the  press ;  to  free  access  to  courts  of  justice,  to  due 
process  of  law,  and  to  an  equal  protection  of  the  laws ;  to 
immunities  from  unreasonable  searches  and  seizures,  as 
well  as  cruel  and  unusual  punishments ;  and  to  such  other 
immunities  as  are  indispensable  to  a  free  government. 
Of  the  latter  class  are  the  rights  of  citizenship,  to  suf- 
frage, and  to  the  particular  methods  of  procedure  pointed 
out  in  the  Constitution  which  are  peculiar  to  Anglo- 
Saxon  jurisprudence,  and  some  of  which  have  already 
been  held  by  the  states  to  be  unnecessary  to  the  proper 
protection  of  individuals. 

''Whatever  may  be  finally  decided  by  the  American 
people  as  to  the  status  of  these  islands  and  their  in- 
habitants— ^whether  they  shall  be  introduced  into  the 
sisterhood  of  states  or  be  permitted  to  form  independent 
governments — it  does  not  follow  that,  in  the  meantime- 
awaiting  that  decision,  the  people  are  in  the  matter  of 
personal  rights  unprotected  by  the  provisions  of  our 
Constitution,  and  subject  to  the  merely  arbitrary  control 
of  Congress.  Even  if  regarded  as  aliens,  they  are  en- 
titled under  the  principles  of  the  Constitution  to  be  pro- 
tected in  life,  liberty,  and  property.  .  .  .  We  do  not  de- 
sire, however,  to  anticipate  the  difiOiculties  which  would 

Vol.  XII— 19 


270  CONSTITUTIONAL  LAW 

naturally  arise  in  this  connection,  but  merely  to  disclaim 
any  intention  to  hold  that  the  inhabitants  of  these  ter- 
ritories are  subject  to  an  unrestrained  power  on  the  part 
of  Congress  to  deal  with  them  upon  the  theory  that  they 
have  no  rights  which  it  is  bound  to  respect"  (17). 

These  important  suggestions  have  been  applied  in  two 
recent  cases,  in  which  it  was  held  that  the  requirement 
of  grand  and  trial  juries  for  the  prosecution  of  criminals 
did  not  bind  the  United  States  government  in  Hawaii 
(18),  or  in  the  Philippines  (19). 

§  265.  Foreign  territory  temporarily  occupied,  (d)  As 
regards  territory  temporarily  occupied  by  this  country, 
though  not  annexed,  probably  the  Constitution  does  not 
apply  at  all.  During  the  American  occupation  of  Cuba 
after  the  Spanish  war,  the  entire  government  was  ad- 
minstered  under  American  control.  An  American  citizen 
who  was  alleged  to  have  committed  a  crime  in  Cuba  was 
arrested  in  this  country  to  be  sent  back  there  for  trial. 
The  contention  of  the  defendant  and  the  answer  of  the 
court  appear  in  the  following  quotation: 

"It  is  contended  that  the  act  of  June  6, 1900,  is  uncon- 
stitutional and  void  in  that  it  does  not  secure  to  the  ac- 
cused, when  surrendered  to  a  foreign  country  for  trial 
in  its  tribunals,  all  of  the  rights,  privileges,  and  im- 
munities that  are  guaranteed  by  the  Constitution  to  per- 
sons charged  with  the  commission  in  this  country  of  crime 
against  the  United  States.    Allusion  is  here  made  to  the 


(17)  Downes  v.  Bidwell.  1R2  U.  S.,  244.  282-3. 

(18)  Hawaii  v.  Mankicbi,  190  U.  S.,  15^)7. 

(19)  Dorr  v    United  States,  195  U.  S.,  138. 


THE  FEDERAL  GOVERNMENT        271 

provisions  of  the  Federal  Constitution  relating  to  the 
writ  of  habeas  corpus,  bills  of  attainder,  ex  post  facto 
laws,  trial  by  jury  for  crime,  and  generally  to  the  funda- 
mental guarantees  of  life,  liberty,  and  property  embodied 
in  that  instrument.  The  answer  to  this  suggestion  is  that 
those  provisions  have  no  relation  to  crimes  committed 
without  the  jurisdiction  of  the  United  States  against  the 
laws  of  a  foreign  country"  (20). 

§  266.  Foreign  consular  jurisdiction,  (e)  It  seems  also 
that  the  Constitution  of  the  United  States  does  not  apply 
to  any  actions  of  our  government  that  may  be  authorized 
within  foreign  countries  by  the  law  there.  If  the  Japanese 
government  permits  American  consuls  to  conduct  trials 
in  Japan  in  the  consular  courts,  no  jury  need  be  provided. 
''The  Constitution  can  have  no  operation  in  another 
country.  When  therefore  the  representatives  or  officers 
of  our  government  are  permitted  to  exercise  authority  of 
any  kind  in  another  country,  it  must  be  on  such  conditions 
as  the  two  countries  may  agree,  the  laws  of  neither  one 
being  obligatory  upon  the  other"  (21). 

§  267.    Admission  of  new  states  into  the  Union.    The 

Constitution  provides,  Article  IV,  section  3,  §  1:  "New 
states  may  be  admitted  by  the  Congress  into  this  Union; 
but  no  new  states  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state ;  nor  any  state  be  formed 
by  the  junction  of  two  or  more  states,  or  parts  of  states, 
without  the  consent  of  the  legislatures  of  the  states  con- 
cerned as  well  as  of  the  Congress." 


(20)  Neely  v.  Henkel,  180  U.  S.,  109,  122. 

(21)  In  re  Ross,  140  U.  S.,  453,  464. 


272  CONSTITUTIONAL  LAW 

It  was  contemplated  that  new  states,  formed  out  of 
the  territory  owned  by  the  United  States,  should  be  ad- 
mitted to  the  Union  from  time  to  time,  as  the  various 
organized  territories  became  fitted  for  this.  The  first 
new  state  admitted  under  this  clause  was  Vermont  in 
1791,  and  the  number  has  been  increased  until  at  this 
date  (1909)  thirty-three  states  have  been  admitted  in  ad- 
dition to  the  original  thirteen.  It  is  generally  admitted 
today  that  the  admission  of  a  state  to  the  Union  is  ir- 
revocable, and  that  the  state  can  neither  withdraw  nor  be 
excluded. 

"The  Constitution,  in  all  its  provisions,  looks  to  an 
indestructible  Union,  composed  of  indestructible  states. 
When,  therefore,  Texas  became  one  of  the  United  States, 
she  entered  into  an  indissoluble  relation.  All  the  obliga- 
tions of  perpetual  union  and  all  the  guarantees  of  repub- 
lican government  in  the  Union,  attached  at  once  to  the 
state.  The  act  which  consummated  her  admission  into 
the  Union  was  something  more  than  a  compact;  it  was 
the  incorporation  of  a  new  member  into  the  political  body. 
And  it  was  final.  .  ,  .  There  was  no  place  for  reconsidera- 
tion, or  revocation,  except  through  revolution,  or  through 
consent  of  the  states.  .  .  .  Texas  continued  to  be  a  state, 
and  a  state  of  the  Union,  notwithstanding  the  transac- 
tions [secession  and  Civil  war]  to  which  we  have  re- 
ferred" (22). 

§  268.  Can  new  states  be  admitted  with  powers  less 
than  those  of  other  states?  A  state  can  only  be  admitted 
upon  the  same  footing  as  the  other  states  and  any  attempt 


(22)     Texas  v.  White,  7  Wall.,  700. 


THE  FEDERAL  GOVERNMENT  273 

by  Congress  in  the  terms  of  admission,  either  to  increase 
its  own  powers  or  diminish  those  of  the  new  state  as  com- 
pared with  its  neighbors,  are  invalid  (23).  Congress  has 
at  various  times  purported  to  limit  in  certain  particulars 
the  legislative  powers  of  states  newly  admitted,  like 
Utah,  or  ''reconstructed,"  like  Mississippi,  the  former 
in  respect  to  the  future  legalization  of  polygamy,  and  the 
latter  in  respect  to  the  restrictions  upon  suffrage.  These 
attempts  are  doubtless  invalid  (24). 

A  distinction  has  been  made,  however,  between  terms 
of  admission  limiting  the  political  rights  of  new  states, 
and  those  limiting  their  rights  with  respect  to  property. 
Thus,  provisions  qualifying  the  right  of  Minnesota  to 
deal  with  the  public  lands  of  the  United  States  in  the 
hands  of  the  latter  or  its  transferees  have  been  upheld  fis 
an  agreement  respecting  property  made  by  the  new  state 
upon  its  admission  (25). 


(23)  Coyle  v.  Smith,  221  TT.  S.  559. 

(24)  Sproule  v.  Fredericks,  fi9  Miss.  89a 
^25)     Stearns  v.  Miunesota,  179  U.  S.,  223. 


CHAPTER  XIV. 

REGULATION  OF  COMMERCE. 

§  269.  Historical  outline.  Commercial  difficulties  ari- 
sing from  the  divergent  legislation  of  the  original  states, 
and  the  discriminatory  regulations  of  foreign  countries 
to  which  America  could  oppose  no  united  resistance, 
created  perhaps  the  strongest  single  influence  that  led 
to  the  adoption  of  the  Constitution.  In  the  convention 
the  southern  delegates  wished  to  forbid  the  United  States 
from  taxing  exports  or  from  prohibiting  the  slave  trade ; 
and  to  restrict  the  national  power  to  regulate  commerce 
and  to  pass  navigation  laws.  The  interests  of  the  north- 
ern commercial  states  were  opposed  to  all  these  views, 
and  a  compromise  was  finally  agreed  upon.  The  United 
States  was  forbidden  to  tax  exports  or  to  prohibit  the 
slave  trade  for  twenty  years.  On  the  other  hand  Con- 
gress was  given  unrestricted  power  **to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states, 
and  with  the  Indian  tribes."  Tonnage  taxes  and  duties 
on  imports  were  denied  to  the  states.  All  of  these  pro- 
visions ha^dng  a  commercial  purpose  may  conveniently 
be  discussed  together. 

Section  1.    Duties  on  Imports,  Expoets,  and  Tonnage. 

§  270.    State  duties  on  imports  prohibited.    ''No  state 
shall,  without  the  consent  of  the  Congress,  lay  any  im' 

274 


THE  FEDERAL  GOVERNMENT        275 

posts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws ; 
and  the  net  produce  of  all  duties  and  imposts,  laid  by 
any  state  on  imports  or  exports,  shall  be  for  the  use  of  the 
treasury  of  the  United  States ;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  the  Congress"  (1). 

At  the  time  the  Constitution  was  adopted  most  of  the 
imports  to  the  United  States  from  foreign  countries  en- 
tered the  country  through  the  ports  of  the  two  or  three 
states  having  good  harbors,  notably  New  York  and  Rhode 
Island.  These  states,  by  levying  duties  upon  imports, 
not  only  reserved  this  valuable  source  of  revenue  to  them- 
selves, but  were  enabled  to  levy  tribute  upon  all  of  the 
other  states  using  imported  goods.  The  impost  duties 
levied  by  New  York  simply  added  that  much  to  the  price 
of  the  imported  articles  afterwards  shipped  from  New 
York  to  other  states,  and  the  citizens  of  the  non-import- 
ing states  got  no  benefit  from  the  taxes  finally  borne  by 
them.  It  was  at  once  recognized  in  the  Philadelphia  con- 
vention that  the  power  to  levy  import  duties  should  be 
placed  in  the  hands  of  Congress,  and  that  the  revenue 
therefrom  should  belong  to  the  national  government. 
There  was  little  objection,  therefore,  to  the  adoption  of 
the  clause  quoted  above. 

§  271.  What  is  an  import?  The  first  question  that  nat- 
urally presents  itself  is  whether  this  prohibition  extends 
to  goods  imported  from  other  states  or  only  to  those  im- 
ported from  foreign  countries.  The  question  was  not 
directly  presented  to  the  Supreme  Court  until  1869,  when 


(1)     Const.,  Art.  I,  sec.  10,  §  2. 


276  CONSTITUTIONAL  LAW 

it  was  decided,  after  a  careful  consideration  of  the  his- 
torical meaning  of  the  words  used,  that  imports  referred 
only  to  goods  coming  from  foreign  countries  (2).  Ob- 
viously the  term  applies  only  to  property,  not  to  free 
persons  entering  the  country. 

§  272.  What  is  a  tax  on  imports?  Of  course  many 
imports  remain  physically  intact  for  a  long  time  after 
importation  and  so  it  may  be  asked  for  how  long  after 
importation  does  the  exemption  from  state  taxation  con- 
tinue? This  was  the  question  presented  to  the  Supreme 
Court  in  the  important  case  of  Brown  v.  Maryland  (3) 
which  was  decided  in  1827.  A  law  of  Maryland,  requir- 
ing a  license  fee  from  all  importers  who  sold  imported 
goods,  was  resisted.  The  view  might  have  been  taken 
that  a  tax  upon  imports  was  a  tax  imposed  only  on  ac- 
count of  or  upon  the  occasion  of  the  importation  of  prop- 
erty; and  that  a  tax  upon  all  property  alike,  domestic 
and  foreign,  after  it  had  reached  its  destination  in  the 
state,  was  not  a  tax  upon  imports  at  all.  This  would  ef- 
fectively have  prevented  a  state  from  raising  a  revenue 
from  a  tax  levied  specifically  upon  imports,  or  discrimi- 
nating against  them,  and  doubtless  would  have  satisfied 
the  purposes  of  the  framers  of  the  Constitution.  Chief 
Justice  Marshall,  however,  went  further,  and  interpreted 
the  clause  to  forbid  a  state's  taxing  imports  at  all,  even 
by  a  general  property  tax,  so  long  as  the  import  had  not 
been  used,  sold,  or  taken  out  of  the  original  package  in 
which  it  was  imported.    He  also  decided  that  a  tax  upon 


(2)  Woodruff  V.  Parham,  8  Wall.,  123. 

(3)  12  Wheaton,  419. 


THE  FEDERAL  GOVERNMENT        277 

the  selling  of  an  article  was  substantially  a  tax  upon  the 
article  itself  and  fell  within  the  prohibition  upon  the 
latter. 

The  principal  reason  for  this  decision  was  that  other- 
wise it  was  impossible  to  prevent  the  importing  states 
with  good  seaports  from  exacting  tribute  from  the  neces- 
sities of  users  of  imported  goods  in  other  states.  "When 
the  importations  were  not  made  directly  by  persons  in 
the  state  where  they  were  used,  it  would  be  necessary  to 
buy  them  from  the  original  importer,  and,  if  his  state 
taxed  them,  even  under  a  general  tax,  their  price  would 
be  increased  to  the  next  purchaser.  Therefore  they  were 
allowed  to  be  sold  once  before  being  subject  to  any  state 
taxation  whatever.  If  not  sold,  but  used  or  taken  out 
of  the  original  package  by  the  importer,  the  necessity  for 
an  exemption  for  the  above  purpose  of  course  ceased,  and 
they  could  be  taxed.  Such  was  the  origin  and  purpose  of 
the  now  famous  ''original  package"  doctrine. 

§273.  Development  of  the  "original  package"  doc- 
trine. The  result  of  the  decision  in  Brown  v.  Maryland 
is  that  stocks  of  imported  goods,  no  matter  how  large, 
are  exempt  from  all  state  or  municipal  taxation  so  long 
as  they  remain  unsold  in  the  original  packages.  Curi- 
ously enough,  the  question  what  constituted  the  original 
package  did  not  come  before  the  Supreme  Court  for  over 
110  years  after  the  adoption  of  the  Constitution.  Then 
it  arose  in  a  case  from  New  Orleans.  An  importer  of 
dry  goods  in  the  city  would  order  from  Europe  500  dozen 
towels.  The  towels  would  be  wrapped  by  the  foreign 
manufacturer  in  small  packages  of  several  dozen  towels 


278  CONSTITUTIONAL  LAW 

each,  and  100  of  these  small  separately  wrapped  packages 
would  then  be  shipped  to  New  Orleans  in  a  large  wooden 
packing  case.  The  importer  there  would  open  the  case 
and  offer  for  sale  the  separately  wrapped  packages. 
These  latter  packages  were  never  broken.  Did  the  small 
parcels  constitute  the  ''original  package"  protected  by 
the  imiDorting  clause,  or  was  the  large  wooden  case  the 
original  package!  The  court  decided  that  the  latter  was 
the  true  meaning,  and  that  opening  the  large  case  and 
offering  the  small  parcels  for  sale  separately  deprived 
them  of  their  immunity  from  taxation  (4). 

§  274.  Same :  How  large  must  an  * '  original  package '  * 
be?  Immediately  after  this  decision,  the  court  was 
called  upon  to  settle  how  large  a  package  must  be  in  order 
to  be  an  "original  package,"  even  if  actually  imported 
separately.  Suppose  cigarettes  are  imported  in  single 
boxes  of  ten  each  and  beer  in  separate  bottles,  are  these 
exempted  from  taxation  until  sold,  not  to  the  retailer,  but 
to  the  consumer  ?  Under  the  commerce  clause  of  the  Con- 
stitution goods  shipped  from  one  state  into  another  are 
free  from  certain  kinds  of  state  regulation  so  long  as 
they  remain  unsold  in  the  original  package.  This  is  fully 
discussed  in  §§  296-98,  below.  A  state  prohibiting  the 
sale  of  liquor  or  cigarettes  within  it  might  find  its  policy 
entirely  defeated,  by  the  importation  into  it  of  small 
separate  packages  of  spirits  or  tobacco  of  a  size  adapted 
to  the  retail  trade,  through  its  inability  to  regulate  the 
sale  of  interstate  and  foreign  goods  in  the  original  pack- 
age.    This  phase  of  the  matter  was  actually  presented 


(4 J     May  v.  New  Orleans,  178  U.  S.,  496. 


THE  FEDERAL  GOVERNMENT  279 

in  Austin  v.  Tennessee.  In  1900,  single  packages  of 
cigarettes  shii)ped  into  Tennessee  separately  were  offered 
for  sale  as  original  packages  in  defiance  of  the  laws  of 
Tennessee  to  the  contrary.    The  court  said: 

*'The  real  question  in  this  case  is  whether  the  size  of 
the  package  in  which  the  importation  is  actually  made  is 
to  govern ;  or,  the  size  of  the  package  in  which  bona  fide 
transactions  are  carried  on  between  the  manufacturer  and 
the  wholesale  dealer  residing  in  different  states.  We 
hold  to  the  latter  view.  The  whole  theory  of  the  ex- 
emption of  the  original  package  from  the  operation  of 
state  laws  is  based  upon  the  idea  that  the  property  is  im- 
ported in  the  ordinary  form  in  which,  from  time  im- 
memorial, foreign  goods  have  been  brought  into  the  coun- 
try. These  have  gone  at  once  into  the  hands  of  the  whole- 
sale dealers,  who  have  been  in  the  habit  of  breaking  and 
distributing  their  contents  among  the  several  retail  deal- 
ers throughout  the  state.  It  was  with  reference  to  this 
method  of  doing  business  that  the  doctrine  of  the  ex- 
emption of  the  original  package  grew  up.  By  taking  the 
words  *  original  package'  in  their  literal  sense,  a  number 
of  so-called  original  package  manufactories  have  been 
started  through  the  country,  whose  business  it  is  to  manu- 
facture goods  for  the  express  purpose  of  sending  their 
products  into  other  states  in  minute  packages,  that  may 
at  once  go  into  the  hands  of  the  retail  dealers  and  con- 
sumers, and  thus  bid  defiance  to  the  laws  of  the  state 
against  their  importation  and  sale. . . ,  Without  undertak- 
ing to  determine  what  is  the  proper  size  of  an  original 
package  in  each  case,  evidently  the  doctrine  has  no  ap- 


280  CONSTITUTIONAL  LAW 

plication  where  the  manufacturer  puts  up  the  package 
with  the  express  intent  of  evading  the  laws  of  another 
state,  and  is  enabled  to  carry  out  his  purpose  by  the  facile 
agency  of  an  express  company  and  the  connivance  of  his 
consignee"  (5). 

So  far  as  the  constitutional  prohibition  upon  taxing  im- 
ports is  concerned,  this  interpretation  is  precisely  in  the 
spirit  of  the  original  interpretation  that  exempted  '  *  orig- 
inal packages."  It  was  designed  to  enable  non-importing 
states  to  purchase  goods  from  importers  resident  in  the 
importing  states  without  having  to  pay  taxes  to  the 
governments  of  the  latter.  This  result  is  amply  secured 
by  protecting  the  wholesale  trade  in  imports. 

§  275.  State  and  Federal  duties  on  exports  forbidden. 
The  Constitution,  xVrticle  I,  section  9,  §  5  provides:  "No 
tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state. ' '  This  is  a  prohibition  on  the  Federal  government, 
and,  with  the  one  on  the  states  already  quoted  ( §  270, 
above),  forbids  any  tax  whatever  on  exports  in  the  United 
States. 

The  word  export  in  this  clause  applies  only  to  goods 
exported  to  a  foreign  country.  It  does  not  apply  to  goods 
passing  between  the  United  States  and  territorial  depend- 
encies like  Porto  Eico  (6). 

§  276.  What  is  a  tax  on  exports?  The  general  excise 
tax  levied  by  the  United  States  upon  all  property  of  a 
certain  class  alike,  such  as  tobacco  or  cheese,  is  not  a  tax 
upon  exports  simply  because  some  of  these  goods  are 


(5)  Austin  V.  Tennessee,  179  U.  S.,  343,  359-60. 

(6)  Dooley  v.  U.  S.,  183  U.  S.,  151. 


I 


THE  FEDERAL  GOVEiRNMENT  281 

afterwards  actually  exported,  or  even  wheii  they  are 
manufactured  under  a  contract  for  export.  It  is  only 
when  goods  are  taxed  by  reason  of  or  upon  the  occasion  of 
their  exportation  that  it  is  a  tax  upon  exports  (7). 

The  stamp  tax  imposed  on  bills  of  lading  for  any  goods 
exported  from  the  United  States  amounts  to  a  tax  on 
exports.  Commercial  usage  almost  necessarily  requires 
that  bills  of  lading  be  issued  upon  the  occasion  of  export- 
ing, and  a  tax  upon  a  necessary  incident  of  export 
amounts  to  a  tax  upon  the  goods  exported  (8). 

§  277.  State  inspection  laws.  '*We  feel  quite  safe  in 
saying  that  neither  at  the  time  of  the  formation  of  the 
Constitution  nor  since  has  any  inspection  law  included 
anything  but  personal  property  as  a  subject  of  its  opera- 
tion. .  .  .  What  is  an  inspection  ?  Something  which 
can  be  accomplished  by  looking  at  or  weighing  or  meas- 
uring the  thing  to  be  inspected,  or  applying  to  it  at  once 
some  crucial  test.  When  testimony  or  evidence  is  to  be 
taken  and  examined,  it  is  not  inspection  in  any  sense 
whatever."  Therefore  the  Supreme  Court  held  invalid 
a  law  of  New  York  requiring  foreign  immigrants  to  pay 
so-called  inspection  fees  for  ascertaining  whether  they 
were  criminals,  paupers,  or  orphans  (9). 

"Eecognized  elements  of  inspection  laws  have  always 
been  quality  of  the  article,  form,  capacity,  dimensions, 
and  weight  of  package,  mode  of  putting  up,  and  marking 
and  branding  of  various  kinds,  all  these  matters  being 


(7)     Cornell  v.  Coyne,  192  U.  S.,  418. 

(8:     Fairbanks  v.  U.  S.,  181  U.  S.,  283. 

(9)     People  V.  Comp,  Gen.  Transatlantique,  107  U.  S.,  pp.  61,  62. 


282  CONSTITUTIONAL  LAW 

supervised  by  a  public  officer  having  authority  to  pass 
or  not  pass  the  article  as  lawful  merchandise,  as  it  did 
or  did  not  answer  the  prescribed  requirements"   (10). 

The  Constitution  permits  states,  at  least  in  the  absence 
of  Congressional  prohibition,  to  lay  duties  on  imports 
and  exports  sufficient  to  execute  their  inspection  laws 
(§  270,  above).  If  the  duties  laid  for  this  purpose  are 
not  too  high  for  the  law  to  be  regarded  as  a  bona  fide 
inspection  law  the  duties  imposed  are  valid,  apparently 
even  though  the  court  may  think  them  somewhat  exces- 
sive for  their  purpose.  The  Supreme  Court  has  sug- 
gested that  under  the  wording  of  this  clause  Congress  is 
the  proper  tribunal  to  decide  whether  a  fee,  really  for 
inspection,  is  excessive;  and  that  the  court  cannot  inter- 
fere (11).  Where  the  alleged  inspection  fee  is  too  high 
to  have  been  intended  in  good  faith  solely  for  this  pur- 
pose, the  courts  may  pronounce  it  invalid  as  really  not 
an  inspection  law  at  all  but  designed  for  other  pur- 
poses (12). 

§  278.  State  tonnage  duties  forbidden.  The  Constitu- 
tion, Article  I,  section  9,  §  3,  provides:  "No  state  shall, 
without  the  consent  of  Congress,  lay  any  duty  of 
tonnage. ' ' 

This  does  not  prevent  a  state  in  which  a  vessel  has  a 
situs  for  taxation  (§§  173,  288)  from  taxing  it  upon  its 
assessed  property  value,  or  even  from  imposing  on  it  a 
€xed  license  fee  for  its  employment  in  navigation,  but  it 


(10)  Turner  v.  Maryland,  107  U.  S.,  p.  55. 

(11)  Patapsco  Guano  Co.  v.  No.  Carolina,  171  U.  S.,  p.  355. 

(12)  Brimmer  v.  Rebman,  138  U.  S..  78. 


THE  FEDERAL  GOVERNMENT        283 

apparently  prevents  a  tax  proportioned  to  tonnage,  as 
$1  a  ton,  and  so  forth  (13).  When  the  imposition  is  not 
really  a  tax,  but  is  compensation  for  the  benefit  of  specific 
improvements  or  services,  like  improved  waterways, 
wharves,  or  quarantine  inspection,  the  charge  may  be 
according  to  tonnage  (14).    Compare  §  290,  below. 

Section  2.  Interstate  Commerce.  General  Concep- 
tions. 

§  279.  Commerce  clause.  The  Constitution,  Article  I, 
section  8,  §  3,  gives  Congress  power  "to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states, 
and  with  Indian  tribes." 

The  early  decisions  upon  this  clause  were  largely  de- 
voted to  determining  whether  the  power  to  regulate  inter- 
state and  foreign  commerce  was  exclusively  with  the 
United  States,  or  was  a  concurrent  power.  Later  the  liti- 
gation was  chiefly  over  the  line  to  be  drawn  between  the 
exclusive  and  concurrent  parts  of  the  power;  and  more 
recently  the  important  decisions  have  concerned  the  ex- 
tent to  which  Congress  may  regulate  matters  incidental 
to  commerce.  It  will  be  convenient  to  consider  the  sub- 
ject roughly  in  this  order. 

§  280.  What  is  commerce?  In  the  earliest  great  case 
upon  the  subject.  Gibbons  v.  Ogden  (15),  it  was  said  by 
Chief  Justice  Marshall  that  commerce  was  intercourse — 
commercial  intercourse  in  all  its  branches,  including  navi- 
gation and  the  carriage  of  passengers  as  well  as  goods. 


(13)  State  Tonnage  Tax  Cases,  12  Wall.,  204, 

(14)  Huse  V.  Glover,  119  U.  S.,  543. 
fl5)     9  Wheaton,  1. 


284  COXSTITUTIOXAL  LAW 

Fifty  years  later  it  was  said  ' '  commerce  is  a  term  of  the 
largest  import.  It  comprehends  intercourse  for  the 
purposes  of  trade  in  any  and  all  of  its  forms,  including 
the  transportation,  purchase,  sale,  and  exchange  of  com- 
modities." In  1877  it  was  decided  that  the  business  of 
sending  telegraph  messages  was  commerce  (16),  and 
more  recently  it  has  been  held  that  the  maintenance  of 
a  toll  bridge  or  ferry  for  passengers  crossing  a  river  be- 
tween two  states  is  also  commerce. 

Usually  it  has  been  said  that  the  intercourse  must  be 
"commercial,"  or  for  "trade  purposes,"  but  some  re- 
cent opinions  omit  even  this  qualification.  In  the  bridge 
case  just  referred  to  the  court  said:  "The  thousands 
of  people  who  daily  pass  and  repass  over  this  bridge  may 
as  truly  be  said  to  be  engaged  in  commerce  as  if  they 
were  shipping  cargoes  or  merchandise  from  New  York  to 
Liverpool"  (17).  Many  of  those  persons  were  no  doubt 
crossing  the  bridge  for  non-commercial  purposes,  and  it 
has  never  yet  been  decided  whether  a  commercial  pur- 
pose is  essential  to  make  the  transit  of  persons  or  goods 
commerce. 

It  has  several  times  been  decided  that  where  inter- 
course is  not  involved  in  the  transaction  it  is  not 
commerce.  Manufacturing,  for  instance,  is  not  com- 
merce; nor  is  agriculture,  nor  mining,  nor  fishing.  An 
early  prosecution  under  the  Federal  anti-trust  act,  which 
forbade  combinations  in  restraint  of  commerce  among 
the  states,  failed  when  directed  against  a  combination  to 


(16)     Pensacola  Tel  eg.  Co.  v.  Western  Union  Tel  eg.  Co.,  96  U.  S.  1. 

riT)  Covington  Bridge  Co.  v.  Kentufky.  154  U.  S.  204.  The  busi- 
ness of  a  correspondence  school  is  also  commerce.  International  Ca  r. 
Plgg,  217  U.  S.  91. 


THE  FEDERAL  GOVERNMENT        285 

manufacture  sugar.  ''Commerce  succeeds  to  manufac- 
ture, and  is  not  a  part  of  it. ' '  The  combination  to  manu- 
facture was  not  subject  to  Federal  control,  although  a 
combination  in  selling  the  manufactured  article  would 
be  (18). 

§  281.  When  is  commerce  interstate?  When  is  com- 
merce carried  on  "among  the  states"  or  "with  foreign 
nations"  as  contrasted  with  commerce  in  a  single  state*? 
Obviously  the  commercial  power  would  be  most  ineffect- 
ive if  confined  to  commerce  at  the  instant  when  it  was 
crossing  a  state  line.  Commerce  carried  on  wholly  within 
a  state  is  subject  to  state  regulation  only,  but  if  it  crosses 
a  state  line  the  entire  commercial  transaction  of  which 
the  crossing  is  a  part  is  within  the  Federal  power.  This 
lis  clearly  illustrated  by  a  case  decided  about  1870.  A 
small  steamer  plied  upon  a  Michigan  river  between 
ipoints  wholly  in  Michigan.  It  did  not  run  in  connection 
[with  any  transportation  line  leading  to  other  states, 
though  some  of  the  goods  it  carried  were  ultimately  des- 
jtined  for  outside  points.  The  Supreme  Court  held  that 
the  carriage  of  any  such  goods  made  the  steamer  engaged 
in  interstate  commerce  and  subject  to  the  regulation  of 
Congress. 

"So  far  as  she  was  employed  in  transporting  goods 
destined  for  other  states,  or  goods  brought  from  without 
the  limits  of  Michigan  and  destined  to  places  within  that 
state,  she  was  engaged  in  commerce  between  the  states, 
and,  however  limited  that  commerce  may  have  been,  she 
was,  so  far  as  it  went,  subject  to  the  legislation  of  Con- 


(18)     United  States  v.  Knight  Co.,  156  U.  S.,  1. 

Vol.  xn— 20 


286  CONSTITUTIONAL  LAW 

gress.  She  was  employed  as  an  instrument  of  that  com- 
merce ;  for  whenever  a  commodity  has  begun  to  move  as 
an  article  of  trade  from  one  state  to  another,  commerce 
in  that  commodity  between  the  states  has  commenced. 
The  fact  that  several  different  and  independent  agencies 
are  employed  in  transporting  the  commodity,  some  act- 
ing entirely  in  one  state,  and  some  acting  through  two  or 
more  states,  does  in  no  respect  affect  the  character  of  the 
transaction.  To  the  extent  in  which  each  agency  acts  in 
that  transportation,  it  is  subject  to  the  regulation  of 
Congress"  (19). 

Since  then  it  has  been  said  that  "the  regulation  of 
sommerce  implies  as  much  control,  as  far  reaching  pow- 
ers, over  an  artificial  as  over  a  natural  highway."  In 
view  of  these  statements  it  seems  that  Congress  would 
have  power  to  regulate  practically  every  public  highway 
and  public  means  of  transportation  in  the  United  States, 
including  city  streets  and  car  lines ;  for  all  of  these  to  a 
certain  extent  are  employed  in  transporting  commodi- 
ties or  persons  who  are  moving  on  a  journey  into  or  out 
of  a  state. 

§  282.  Beginning  and  ending  of  commercial  transit. 
When  commerce  consists  in  transportation,  the  point  of 
time  at  which  it  begins  is  when  the  subject  of  it  is  actually 
started  on  a  continuous  journey  to  another  state,  or  is 
delivered  to  a  carrier  for  such  transportation.  Prelim- 
inary movements  for  the  purpose  of  making  proper  ar- 
rangements for  its  journey,  or  assembling  it  at  the  point 
where  the  real  journey  is  to  begin  are  not  a  part  of  the 


(19)     The  Daniel  Ball,  10  Wall.,  557 


THE  FEDERAL  GOVERNMENT        287 

interstate  transportation.  When  the  journey  has  once 
begun  its  continuous  character  is  not  destroyed  when  the 
movement  is  temporarily  halted  for  the  purposes  of  the 
journey,  as  in  making  railroad  connections,  or  in  caring 
for  driven  animals,  or  in  waiting  for  high  water  to  con- 
tinue the  flotation  of  logs  (20).  On  the  other  hand,  if 
the  transit  of  the  property  is  stopped,  not  for  a  purpose 
incidental  to  the  journey,  but  for  some  collateral  busi- 
ness purpose,  such  as  a  sale,  or  to  await  further  orders, 
its  interstate  journey  has  ceased  (21). 

§  283.  Transit  across  state  border  an  essential  part  of 
transaction.  Business  or  commerce  which  does  not  con- 
template as  part  of  the  transaction  that  anything  (such 
as  goods,  persons,  or  intelligence),  shall  cross  a  state  line 
is  not  interstate  commerce.  Thus,  the  making  of  an 
insurance  contract  in  one  state,  by  a  company  whose 
place  of  business  is  in  another  state,  is  not  interstate 
commerce  (22) ;  nor  is  a  contract  in  one  state  to  sell 
property  in  another,  no  transportation  between  the  two 
states  being  contemplated.  On  the  other  hand,  the  sell- 
ing of  goods  to  be  shipped  out  of  a  state,  or  their  sale 
made  upon  coming  into  the  state,  or  the  making  of  con- 
tracts to  bring  them  into  the  state  are  all  part  of  inter- 
state commerce  (23). 

§  284.  Is  Federal  power  to  regulate  commerce  exclu- 
sive?   For  many  years  after  the  adoption  of  the  Constitu- 


(20)  Coe  V.  Errol,  116  U.  S.,  517. 

(21)  General  Oil  Co.  v.  Grain,  209  U.  S.,  211. 

(22)  Paul  V.  Virginia,  8  Wall.,  168. 

(23)  Robbing  v.  Shelby  County  District,  120  U.  S.,  489. 


288  CONSTITUTIONAL  LAW 

tion  the  members  of  the  Supreme  Court  were  much  di- 
vided over  the  question  whether  the  grant  of  commercial 
power  to  Congress  was  wholly  exclusive,  or  whether  it 
could  also  be  exercised  by  the  states  until  Congress 
acted  inconsistently  therewith.  This  conflict  was  finally 
brought  to  an  end  in  1851  by  an  opinion  of  Mr.  Justice 
Curtis  in  the  case  of  Cooley  v.  Board  of  Wardens  (24), 
concerning  a  pilotage  law  of  the  port  of  Philadelphia. 
He  said : 

*'The  diversities  of  opinion,  therefore,  which  have  ex- 
isted on  this  subject  have  arisen  from  the  different  views 
taken  of  the  nature  of  this  power.  But  when  the  nature 
of  a  power  like  this  is  spoken  of,  when  it  is  said  that  the 
nature  of  the  power  requires  that  it  should  be  exercised 
exclusively  by  Congress,  it  must  be  intended  to  refer 
to  the  subjects  of  that  power,  and  to  say  they  are  of  such 
a  nature  as  to  require  exclusive  legislation  by  Congress. 
Now,  the  power  to  regulate  commerce  embraces  a  vast 
field,  containing  not  only  many  but  exceedingly  various 
subjects  quite  unlike  in  their  nature;  some  imperatively 
demanding  a  single  uniform  rule,  operating  equally  on 
the  commerce  of  the  United  States  in  every  port;  and 
some,  like  the  subject  now  in  question,  as  imperatively 
demanding  that  diversity  which  alone  can  meet  the  local 
necessities  of  navigation. 

''Either  absolutely  to  affirm  or  deny  that  the  nature 
of  this  power  requires  exclusive  legislation  by  Congress, 
is  to  lose  sight  of  the  nature  of  the  subjects  of  this  power, 
and  to  assert  concerning  all  of  them  what  is  really  appli- 


(24)     12  How..  299. 


THE  FEDERAL  GOVERNMENT        289 

cable  but  to  a  part.  Whatever  subjects  of  this  power  are 
in  their  nature  national,  or  admit  only  of  one  uniform 
system,  or  plan  of  regulation,  may  justly  be  said  to  be  of 
such  a  nature  as  to  require  exclusive  legislation  by 
Congress." 

Since  then  this  rule  has  always  been  accepted,  but  nat- 
urally there  has  been  some  difference  of  opinion  a3  to 
what  commercial  subjects  are  in  their  nature  national 
and  what  are  local.  For  the  next  fifty  years  the  work 
of  the  Supreme  Court  in  interpreting  the  commercial 
clause  consisted  chiefly  in  deciding  where  this  division 
line  lay  in  a  number  of  classes  of  cases.  This  will  be  dis- 
cussed below. 

Section  3.     State  Legislation  Disceiminating  Against 
Inteestate  Commeece, 

§  285.  Discriminatory  legislation  prohibited.  The 
principal  legislative  powers  by  which  interstate  or  for- 
eign commerce  may  be  affected  are  the  powers  of  taxa- 
tion and  of  regulation  (including  prohibition).  It  was 
early  settled  that  any  state  legislation  discriminating 
against  interstate  or  foreign  commerce  in  favor  of  domes- 
tic commerce  was  invalid.  The  securing  of  virtual  free 
trade  between  the  states  was  one  of  the  prime  objects  of 
the  Constitution,  and  hence  all  discriminatory  legislation 
affects  the  subject  in  a  national  respect  and  thus  is  beyond 
the  power  of  the  states  under  the  rule  laid  down  in  the 
Cooley  case.  This  is  so  whether  the  discrimination  takes 
the  form  of  taxation  or  regulation.  No  state  can  require 
a  discriminatory  license  fee  for  the  sale  of  goods  pro- 


290  CONSTITUTIONAL  LAW 

duced  outside  of  it  (25).  It  cannot  require  the  inspec- 
tion of  interstate  goods  when  offered  for  sale,  if  it  does 
not  require  a  like  inspection  of  domestic  goods;  nor  can 
it  forbid  the  sale  of  imported  liquor  in  the  sta^e  if  it  per- 
mits domestic  liquor  to  be  thus  sold  (26). 

Section  4.     Stati?     Taxation     Affecting     Interstate 
Commerce  Without  Discrimination. 

§  286.  Taxes  upon  transportation.  The  transportation 
of  goods  into  or  out  of  a  state — an  activity  which  is  the 
very  essence  of  interstate  commerce — cannot  be  taxed  by 
a  state  at  all,  even  without  discrimination.  This  was 
first  clearly  decided  in  a  case  where  Pennsylvania  had 
attempted  to  levy  a  small  tax  upon  every  ton  of  freight 
carried  in  the  state.  As  regards  interstate  transporta- 
tion the  Supreme  Court  held  that  such  a  tax  was  a  re- 
straint upon  the  right  to  have  the  subjects  of  commerce 
pass  freely  from  one  state  to  another,  and  that  this  was 
a  matter  national  in  its  nature  and  so  unfit  for  local  regu- 
lation (27).  Later  it  was  decided  that  a  percentage  tax 
upon  gross  receipts  from  transportation  was  equally 
bad  as  to  the  receipts  from  interstate  transportation,  on 
the  ground  that  these  were  so  closely  connected  with  the 
transportation  that  it  was  in  substance  the  same  as  tax- 
ing the  transportation.  License  taxes  for  the  privilege  of 
engaging  in  interstate  transportation  are  likewise  in- 
valid; and  so  are  taxes  upon  the  business  of  soliciting 


(25)  Welton  v.  Missouri,  91  U.  S.,  275. 

(26)  Scott  V.  Donald,  165  U.  S.,  58. 

(27)  State  Freight  Tax,  15  Wall.,  232. 


THE  FEDERAL  GOVERNMENT  291 

interstate  transportation,  as  was  held  in  a  case  where 
California  attempted  to  tax  a  railroad  agency  in  San 
Francisco  for  soliciting  passengers  going  east  to  take  a 
particular  line  between  Chicago  and  New  York  (28).  The 
same  principles  have  been  applied  to  the  transmission  of 
intelligence  by  telegraph. 

§  287.  Taxes  upon  sales.  A  state  tax  upon  the  sale  of 
goods  in  the  state  at  the  time  is  valid,  even  though  the 
goods  have  been  brought  from  outside  and  are  offered  for 
sale  in  the  original  packages  (29).  If,  however,  the 
goods  to  be  sold  are  outside  of  the  state,  and  the  business 
done  in  the  state  consists  in  selling  or  soliciting  the  sale 
of  goods  afterwards  to  be  shipped  in  to  fill  the  order,  the 
state  cannot  tax  this  selling  or  soliciting  (30).  The  prin- 
ciple seems  to  be  that  a  state  may  place  no  impediments 
5pon  the  transfer  of  goods  from  one  state  to  another. 
Such  transfer  comprises  not  only  the  actual  transporta- 
tion of  the  goods,  but  such  previous  activities  as  directly 
lead  to  the  transportation,  including  selling  for  delivery 
in  the  state,  and  the  soliciting  of  such  sales  or  transpor- 
tation. On  the  other  hand,  when  the  goods  have  arrived 
at  their  destination,  tliey  may  be  taxed  as  property  or 
dealings  with  them  may  be  taxed  to  provide  revenue  for 
the  government,  in  return  for  the  protection  it  affords  to 
the  property  or  to  the  business  done  with  it.  Such  taxa- 
tion affects  interstate  commerce  too  slightly  to  be  a  na- 
tional matter.  This  principle  seems  to  be  the  one  upon 


(28)  McCall  V.  California,  13G  U.  S..  104. 

(29)  Woodruff  v.  Parham,  8  Wall.,  123. 

(30)  Robbins  v,  Shelby  County  Taxing  District,  120  U.  S.,  489. 


292  CONSTITUTIONAL  LAW 

which  rests  the  well-known  distinction  between  a  state's 
power  to  tax  a  pedler  selling  interstate  goods  and  a 
drummer  selling  them.  The  pedler  has  his  goods  with 
him  and  may  be  taxed ;  the  drummer  is  taking  orders  for 
goods  to  be  shipped  into  the  state,  and  may  not  be  taxed. 

§  288.  Taxes  upon  property  engaged  in  interstate  com- 
merce. While  goods  shipped  from  one  state  to  another 
are  actually  in  transit  they  are  probably  not  taxable  by 
any  state  (31),  but  as  soon  as  they  reach  their  destina- 
tion they  are  taxable  in  that  state,  even  though  they  are 
still  in  the  "original  package"  (32).  The  prohibition 
against  state  taxation  of  imports  extends  only  to  goods 
from  foreign  countries.  Goods  from  other  states  are 
not  imports  (§  271,  above).  The  fact  that  goods  have 
been  brought  into  the  state  for  sale  and  that  such  sales 
are  being  solicited  will  not  prevent  the  goods  being  taxed 
by  the  state  as  property,  without  discrimination. 

The  instruments  by  which  commerce  is  carried  on,  like 
cars  and  ships,  may  be  also  taxed  as  property  in  any 
state  where  they  have  a  situs  for  taxation.  See  §  173, 
above. 

§  289.  Taxes  as  conditions  precedent  to  engaging  in 
interstate  commerce.  State  taxes  upon  property  or  upon 
business,  otherwise  valid,  may  be  imposed  in  such  a  man- 
ner as  to  be  an  unconstitutional  interference  with  inter- 
state commerce.  Suppose,  for  instance,  that  a  telegraph 
company  is  taxed  upon  its  capital  in  the  state,  with  a 
proviso  that  if  it  does  not  pay  the  tax  it  may  thereafter 


(31)  Coe  V.  Errol,  116  U.  S.,  517. 

(32)  Brown  v.  Houston,  114  U.  S.,  622. 


THE  FEDERAL  GOVERNMENT  293 

do  no  business  within  the  state.  This  manner  of  collect- 
ing the  tax  is  unconstitutional,  as  forbidding  the  exercise 
of  a  right  protected  by  the  United  States  Constitution 
from  state  interference — the  right  to  do  interstate  com- 
merce. The  tax  may  be  collected  by  seizing  and  selling 
the  company's  property,  or  in  any  other  way  that  does 
not  impose  upon  it  a  legislative  prohibition  to  exercise 
a  Federal  right  (33).  Similarly,  it  would  not  be  doubted 
that  a  state  statute  was  invalid  that  attempted  to  deprive 
persons  of  the  right  to  use  the  post-office,  for  non-compli- 
ance with  some  state  regulation. 

§  290.  Tolls  for  the  use  of  improvements.  Suppose  a 
state  improves  the  condition  of  a  waterway  or  road  over 
which  interstate  commerce  is  conducted,  and  charges  toll 
for  the  use  of  the  improvement.  A  bona  fide  and  reason- 
able toll  for  such  a  purpose  is  valid.  It  is  distinguished 
from  a  tax  upon  interstate  transportation,  upon  the 
ground  that  it  is  a  reasonable  compensation  for  the  use  of 
a  definite  improvement  made  under  state  authority,  while 
a  tax  is  simply  a  measure  for  revenue  irrespective  of  any 
specific  benefit  obtained  therefrom  (34).  Upon  a  similar 
principle  are  justified  wharfage  fees,  bridge  tolls,  and 
quarantine  and  inspection  charges,  all  of  which  are  fairly 
proportional  to  services  rendered  or  facilities  afforded. 
Compare  §  278,  above. 

§  291.  Taxes  upon  franchises,  and  compensation  for 
their  grant.     As  has  been  explained  elsewhere  in  this 


(33)  Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.,  530. 

(34)  Huse  V.  Glover,  119  U.  S.,  543. 


294  CONSTITUTION^VL  LAW 

article  (§  180,  above),  a  franchise  is  a  privilege  grant- 
able  by  the  government  at  its  pleasure,  which  cannot  be 
exercised  without  such  a  grant.  The  government  that 
grants  a  franchise  may,  in  the  absence  of  a  contract  to 
the  contrary,  tax  it  as  property  at  its  fair  value ;  or  may 
impose  upon  it  an  excise  tax  measured  in  any  reasonable 
manner;  or,  if  the  franchise  be  revocable,  it  may  tax  it 
quite  arbitrarily  as  the  price  of  not  revoking  it  (35).  A 
tax  upon  a  corporate  franchise,  therefore,  is  not  subject 
to  the  same  limitations  as  taxes  upon  property  and  busi- 
ness. If  a  state  measures  the  tax  upon  a  coi'porate  fran- 
chise by  the  gross  receipts  from  the  business  done,  this 
is  valid,  even  though  the  receipts  are  from  interstate 
commerce.  It  is  not  a  tax  upon  the  commerce,  but  upon 
the  franchise  which  the  state  created  at  pleasure,  and 
which  it  may  therefore  tax  (36).  In  so  far  as  a  corpo- 
rate franchise  consists  merely  of  the  power  to  do  inter- 
state commerce,  a  state  cannot  tax  it  if  it  has  been 
granted  by  another  state  or  by  the  United  States,  for 
this  would  be  the  taxation,  not  of  a  particular  privilege 
created  by  itself,  but  of  a  privilege  created  by  another 
sovereignty  and  used  only  in  the  exercise  of  a  Federal 
right. 

As  a  state  is  not  obliged  to  grant  a  franchise  at  all,  it 
may  make  such  pecuniary  conditions  as  it  pleases  when 
the  grant  is  made,  including  an  exaction  of  a  large  per- 
centage (20^)  of  the  receipts  from  transportation,  even 


(35)  California  v.  Central  Pacific  Railroad  Co.,  127  U.  S.,  1,  40-42. 

(36)  Maine  v.  Grand  Trunk  Railroad  Co.,  142  U.  S.,  217. 


THE  FEDERAL  GOVERNMENT        295 

though  these  are  largely  derived  from  interstate  com- 
merce (37). 

§  292.  Taxes  indirectly  affecting  commerce.  Of  course 
any  tax  on  property  or  business  must  be  paid  ultimately 
out  of  the  capital  or  receipts  of  the  business,  and  if  any 
part  of  the  business  is  interstate  commerce  this  ulti- 
mately bears  its  share  of  the  tax,  no  matter  upon  what 
it  is  directly  imposed.  Such  indirect  effect  of  taxation, 
however,  does  not  regulate  interstate  commerce  in  any 
national  aspect,  and  so  is  within  the  concurrent  power  of 
the  states.  For  instance,  Georgia  imposed  a  tax  upon 
the  business  of  conducting  an  employment  agency  to  hire 
laborers  to  be  employed  beyond  the  limits  of  the  state. 
Of  course  the  laborers  who  were  hired  went  out  of  the 
state,  thus  engaging  in  or  becoming  the  subject  of 
interstate  commerce,  but  the  tax  upon  the  business  of 
securing  laborers  to  work  elsewhere  was  so  incidentally 
connected  with  the  actual  transportation  that  it  was  not 
invalid  (38). 

Section  5.     State   Eegulation    Affecting    Interstate 
CoMMEECE  Without  Discrimination. 

§  293.  Regulation  of  transportation:  Rates.  The  in- 
creasing importance  to  the  public  of  transportation  has 
in  recent  years  enormously  increased  the  amount  of  leg- 
islative regulation,  state  and  Federal,  which  it  has  re- 
ceived. Some  of  the  most  important  cases  ever  decided 
under  the  commerce  clause  have  dealt  with  the  question 


(37)  Railroad  Co.  v.  Maryland,  21  Wall.,  456. 

(38)  Williams  v.  Fears,  179  U.  S.,  270. 


296  CONSTITUTIONAL  LAW 

of  the  respective  fields  of  the  state  and  Federal  govern- 
ments in  regulating  transportation.  The  great  case  upon 
state  regulation  of  interstate  railroad  rates  is  that  of  the 
Wabash  Railway  Company,  decided  in  1886  (39).  An 
Illinois  statute  forbade  any  railroad  to  charge  as  much 
for  hauling  freight  or  passengers  any  distance  within 
the  state  as  it  at  the  same  time  charged  for  the  same 
service  over  a  greater  distance  upon  the  same  road.  This 
being  interpreted  by  the  Illinois  courts  to  include  inter- 
state traffic,  the  law  was  held  unconstitutional  by  the 
United  States  Supreme  Court.  The  entire  interstate 
journey  must  be  treated  as  a  unit,  and  to  permit  one  state 
to  prescribe  the  rate  for  services  to  be  performed  partly 
in  other  states,  and  in  the  price  of  which  citizens  of  other 
states  have  an  equal  interest,  would  be  for  a  state  to 
interfere  with  interstate  commerce  in  one  of  its  national 
aspects.  This  decision  was  at  once  followed  by  the  estab- 
lishment of  the  Federal  Interstate  Commerce  Commis- 
sion, by  which  interstate  rates  are  now  regulated. 

The  principle  of  this  decision  has  been  extended  to  all 
cases  where  any  part  of  the  through  journey  from  point 
to  point  passes  outside  of  a  single  state,  even  though 
both  ends  of  the  journey  are  in  one  state.  Thus,  New 
York  may  not  regulate  rates  between  New  York  and 
Buffalo,  when  the  goods  pass  through  Pennsylvania  on 
the  way;  nor  may  California  regulate  ocean  rates  be- 
tween California  points,  where  the  vessel  goes  upon  the 
high  seas  (40).    Nor  may  a  state  require  that  a  purely 


(39)  118  U.  S.,  557.  « 

(40)  Ilauley  v.  Kansas  City,  etc..  Railway  Co.,  187  U.  S.,  617. 


THE  FEDERAL  GOVERNMENT        297 

internal  rate  be  not  higher  than  an  interstate  rate  for 
the  same  distance,  as  this  puts  an  effective  pressure  upon 
the  amount  of  interstate  rates.  When  a  state  regulates 
its  internal  rates  it  must  do  so  with  reference  only  to  the 
earnings  and  expenses  of  internal  traffic.  Interstate  re- 
ceipts and  expenses  must  be  disregarded  (41).    See  p.  307. 

§  294.  Same:  Services.  As  regards  state  regulation 
requiring  certain  kinds  of  service  from  transportation 
companies,  these  are  upheld  unless  they  substantially 
hamper  the  carrier  in  conducting  its  interstate  business. 
Instances  of  the  latter  are:  Compelling  through  inter- 
state trains  to  make  an  unreasonable  number  of  local 
stops,  making  unreasonable  rules  about  furnishing  cars 
for  interstate  shipments,  regulating  the  delivery  of  tele- 
graph messages  in  other  states,  and  requiring  separate 
coaches  for  whites  and  negroes  in  interstate  travel. 

§295.  Same:  Instruments,  agents,  liability,  etc. 
These  phases  of  interstate  transportation  may  usually 
be  regulated  by  the  states  without  involving  any  matter 
of  national  importance.  The  speed  of  interstate  trains  in 
the  state  may  be  regulated,  their  engineers  may  be  re- 
quired to  be  examined  for  color  blindness,  the  heating  of 
passenger  trains  by  stoves  may  be  forbidden,  contracts 
exempting  railways  from  liability  for  negligence  may  be 
forbidden,  and  freight  trains  may  not  be  permitted  to  run 
on  Sunday  except  with  perishable  freight  (42). 

§  296.  Conditions  precedent  and  prohibitions  upon  en- 
gaging in  interstate  commerce.    Just  as  a  state  may  not 


(41)  Smythe  v.  Ames,  169  U.  S.,  46C,  540  ff. 

(42)  Most  of  the  cases  upon  the  subject  are  cited  in  C.  C.   C.  ft 
St.  Louis  Railwav  v.  Illinois,  177  U.  S.,  514. 


298  CONSTITUTIONAL  LAW 

make  the  payment  of  a  tax  a  condition  precedent  to  exer- 
cising the  Federal  right  of  engaging  in  interstate  com- 
merce, neither  may  it  make  a  compliance  with  any  state 
regulation  a  like  condition  precedent.  Thus,  though  a 
state  may  require  that  persons  engaged  in  foreign  com- 
merce shall  report  various  particulars  about  persons 
brought  into  the  country,  a  similar  report  of  certain 
facts  about  the  vessel  may  not  be  required  as  a  condition 
precedent  to  engaging  in  interstate  commerce;  nor  can 
an  express  company  be  required  to  have  a  certain  actual 
capital  in  order  to  do  interstate  business  in  a  state  (43). 
From  this  it  would  seem  clear  that  state  legislation  abso- 
lutely forbidding  interstate  commerce  would  ordinarily 
be  invalid.  Even  foreign  corporations  may  not  be  for- 
bidden to  do  interstate  business  in  a  state,  either  abso- 
lutely or  upon  conditions  (44),  though  of  course  a  corpo- 
ration may  be  made  to  submit  to  conditions  as  the  price 
of  a  corporate  charter  from  a  state,  which  it  could  not 
otherwise  obtain  (45).    Compare  §  291,  above. 

§  297.  Same:  Liquor  prohibition  cases.  Some  recent 
cases  in  which  the  Supreme  Court  has  dealt  with  this 
question  have  excited  extraordinary  interest  on  account 
of  the  important  social  and  economic  factors  involved. 
An  Iowa  statute  forbade  the  manufacture,  sale,  or  trans- 
portation into  the  state  of  any  intoxicating  liquors,  with 
certain  unimportant  exceptions.     The  prohibition  upon 


(43)  Sinnot  v.  Davenport,  22  How.,  227;  Crutcher  v.  Ky.,  141  U.  S.,    ; 
47. 

(44)  Pembina  Co.  v.  Pennsylvania,  125  U.  S.,  181,  190;  Crutcher  v, 
Kentucky,  141  U.  S.,  47,  57. 

(45)  Abhiey  v.  Ryan.  153  U.  S..  436,  440-41. 


THE  FEDERAL  GOVERNMENT  299 

manufacture  was  upheld  as  preceding  oommerce,  under 
the  principle  discussed  in  §  280,  above  (46).  The  provi- 
sion against  transporting  liquors  into  the  state  was  held 
unconstitutional  as  affecting  in  a  national  aspect  a  legiti- 
mate article  of  commerce  in  the  interstate  transportation 
of  which  other  states  than  Iowa  were  interested  (47). 
Then  followed  the  great  case  of  Leisy  v.  Hardin  (48)  in 
1890,  involving  the  remainder  of  the  statute.  In  favor  of 
the  prohibition  of  the  sale  in  Iowa  of  liquor  brought  from 
other  states,  it  was  urged  that  the  admitted  social  and 
economic  effects  of  liquor  selling  made  its  regulation  in 
each  state  a  local  rather  than  a  national  matter.  If  the 
public  policy  of  a  single  state  were  opposed  to  liquor 
selling  this  was  primarily  a  matter  of  local  self -protec- 
tion rather  than  a  matter  for  national  consideration,  and 
so  the  law  should  be  upheld.  On  the  other  side  it  was 
argued  that  Iowa  could  no  more  compel  the  rest  of  the 
country  to  cease  interstate  commerce  with  Iowa  in  liquor 
than  in  any  other  commodity,  so  long  as  liquor  was  gen- 
erally regarded  as  a  legitimate  subject  of  commerce.  It 
was  admitted  that  states  might  exclude  articles  in  bad 
condition,  like  infected  rags  or  diseased  meat,  but  not 
articles  irrespective  of  condition  or  quality.  The  Su- 
preme Court  took  the  latter  view  and  declared  the  statute 
unconstitutional,  holding  that  the  Federal  right  to  en- 
gage in  interstate  commerce  continued  after  the  goods 
had  been  transported  into  the  state  until  they  had  been 


(46)  Kidd  V.  Pearson,  128  U.  S.,  1. 

(47)  Bowman  v.  C.  &  N.  Railway  Co.,  125  U.  S.,  465. 

(48)  135  U.  S.,  100. 


800  CONSTITUTIONAL  LAW 

sold  in  their  original  package,  or  the  package  broken,  or 
the  contents  used,  applying  the  "original  package"  doc- 
trine explained  in  §  272,  above. 

Innnediately  after  this  decision  Congress  passed  a 
law  (the  AVilson  act)  providing  that  liquors  transported 
into  any  state  should,  upon  anival  there,  be  subject  to 
the  operation  of  state  laws  (the  power  of  Congress  to 
enact  such  a  statute  is  discussed  in  §  301,  below).  The 
word  ''arrival"  in  this  statute  has  been  interpreted  to 
mean  delivery  to  the  consignee  at  the  ultimate  destina- 
tion, not  merely  arrival  within  the  borders  of  a  state 
(49),  so  that  a  state  still  cannot  forbid  the  shipment  into 
it  of  intoxicating  liquor.  But  it  may  tax  and  probably 
forbid  the  soliciting  in  it  of  sales  of  liquor  to  be  shipped 
into  the  state  (50). 

§298.  Same:  Later  cases.  Some  years  after  the  Leisy 
case  the  court  passed  upon  a  Massachusetts  statute  for- 
bidding the  sale  in  the  state  of  oleomargarine  colored  to 
look  like  butter,  even  though  healthful  and  properly 
labelled.  This  was  upheld,  even  as  applied  to  interstate 
oleomargarine,  on  the  ground  that  it  was  a  reasonable 
means  of  preventing  fraud  (51).  More  recently  a  New 
York  statute  forbade  any  one  to  possess  dead  game  in 
the  state  during  the  season  when  its  killing  was  forbidden. 
This  was  held  by  the  Supreme  Court  validly  to  forbid 
the  possession  in  the  state  of  game  lawfully  killed  else- 
where and  shipped  into  New  York,  on  account  of  the 


(49)  Rhodes  v.  Iowa,  170  U.  S.,  412. 

(50)  Delamater  v.  South  Dakota.  205  U.  S.,  93. 

(51)  Plamley  v.  Massachusetts,  155  U.  S,,  461. 


THr  FEDERAL  GOVERNMENT  301 

ease  with  which  the  statute  could  otherwise  be  avoided 
(52).  It  is  difficult  to  see  why  the  enforcement  of  its 
prohibition  laws  is  not  as  good  a  local  purpose  as  the  en- 
forcement of  a  state  game  law,  and  if  interstate  com- 
merce may  be  forbidden  to  enforce  the  latter,  it  would 
seem  at  least  as  reasonable  to  do  so  for  the  former.  The 
reasoning  in  Leisy  v.  Hardin  has  not  met  with  general 
acceptance. 

Diseased  animals,  or  those  likely  to  convey  disease, 
may  be  excluded  from  a  state  for  a  period  of  time  rea- 
sonably necessary  to  prevent  danger  from  contagion  (53). 

§  299.  Regulations  indirectly  affecting  interstate  com- 
merce. State  regulations  that  affect  interstate  commerce 
only  indirectly  are  generally  valid.  For  instance,  a  state 
may  obstruct  navigable  waters  (at  least  where  the  head 
of  navigation  is  in  the  state)  by  bridges  or  dams  in  mak- 
ing local  internal  improvements,  although  interstate 
commerce  by  water  is  thus  physically  impeded  (54) ;  it 
may  enact  quarantine,  pilotage,  and  inspection  laws;  it 
may  regulate  grain  elevator  rates,  even  though  part  of 
the  grain  passing  through  the  elevator  is  in  interstate 
.commerce ;  it  may  protect  its  game,  by  forbidding  it  to  be 
killed  for  shipment  out  of  the  state  (55) ;  rules  of  evi- 
dence may  be  enacted  for  interstate  transactions;  and 
corporations  doing  business  in  the  state  may  be  required 
to  submit  to  many  regulations,  even  though  they  are  do- 
ing some  interstate  commerce. 


(52)  Sllz  V.  Hesterberg,  211  U.  S.,  31. 

(53)  Smith  V.  St.  Louis  &  S.  W.  Ry.,  181  U.  S.,  248. 

^54)     Willamette  Bridge  Co.  v.  Hatch,  125  U.  S.,  1. 

J  55)     Geer  v.  Connecticut,  161  U.  S.,  519. 
Vol.  XII— 21 


302  CONSTITUTIONAL  LAW 

Section  6.    Power  of  Conoeess  Over  Interstate  and 

Foreign  Commerce.  ! 

I 
§  300.    Power  of  Congress  complete  and  paramount.  It     \ 

has  been  said  repeatedly  by  the  Supreme  Court  that,     j 
whatever  may  be  the  concurrent  powers  of  the  states     j 
in  the  absence  of  Congressional  action,  when  Congress 
chooses  to  act  it  has  complete  and  paramount  control 
over  the  entire  subject,  and  all  of  its  incidents.     Con- 
gress has  never  chosen  to  enter  a  great  part  of  this  possi-     | 
ble  field  of  legislation,  but  what  it  has  already  done  gives 
a  fair  idea  of  the  extent  of  its  powers.    As  regards  inter-    j 
state  transportation,  Congress  has  authorized  the  con- 
struction of  interstate  railways  and  bridges,  and  has  reg- 
ulated interstate  railway  rates  throughout  the  country; 
it  has  forbidden  combinations  of  railroads  to  maintain 
interstate  rates,  and  more  recently  has  even  forbidden 
the  formation  of  a  single  corporation  to  own  the  stock 
of  two  competing  railways  (56) ;  it  has  absolutely  for-    j 
bidden  the  transportation  of  lottery  tickets  from  one 
state  to  another  ( §  253,  above) ;  it  has  condemned  locks 
and  dams  for  public  use  in  interstate  commerce,  and  may 
presumably  do  the  same  with  railroads  and  telegraph 
lines.    As  regards  the  instruments  and  agencies  of  trans- 
portation Congress  has  regulated  pilots,  lighthouses,  and 
quarantines;  it  has  enlarged  or  obstructed  rivers  and 
harbors;  it  has  compelled  railways  to  use  safety  appli- 
ances and  air-brakes  on  interstate  freight  trains;  it  has 
established  qualifications  for  marine  oflBcers,  and  has 


(56)     Northern  Securities  Co.  v.  United  States,  193  U.  S.,  1»7. 


THE  FEDERAL  GOVERNMENT        303 

regulated  the  rights,  duties,  and  liabilities  of  ships,  sea- 
men, passengers,  and  shippers  engaged  in  commerce  by 
water;  and  a  law  regulating  the  liability  of  interstate 
railroads  to  their  employees  has  been  upheld  in  principle, 
though  declared  invalid  for  including  internal  as  well  as 
interstate  commerce  (57).  It  has  since  been  repassed  by 
Congress,  confined  to  interstate  commerce.  On  the  other 
hand,  it  has  been  said  that  an  employee's  membership  in 
a  labor  union  is  not  closely  enough  related  to  interstate 
commerce  to  enable  Congress  to  forbid  a  railroad  to  dis- 
charge an  employee  solely  on  account  of  such  member- 
ship (58). 

As  regards  the  buying  and  selling  of  interstate  goods, 
the  United  States  has  enacted  the  meat  inspection  and 
pure  food  laws,  designed  to  exclude  from  interstate  traffic 
unhealthful  or  adulterated  food  products;  it  has  for- 
bidden combinations  of  capital  in  restraint  of  interstate 
trade,  and  also  combinations  of  employees  or  labor  unions 
to  boycott  interstate  goods  (59). 

So  long  as  Congress  regulates  matters  directly  affect- 
ing interstate  commerce,  that  is,  the  transportation  of 
goods  from  state  to  state,  or  the  selling  of  goods  to  be 
delivered  in  interstate  trade,  or  the  buying  of  goods  im- 
mediately after  their  arrival  from  another  state,  there 
is  no  doubt  that  the  power  of  Congress  is  complete,  sub- 
ject only  to  the  general  prohibitions  of  the  Constitution 
upon  the  exercise  of  all  Federal  powers,  such  as  the  Fifth 


(57)  Howard  v.  Illinois  Central  Railway  Co.,  207  U.  S-  46f». 

(58)  Adair  v.  United  States,  208  U.  S.,  161. 

(59)  Addyston  Pipe  Co.  v.  United  States,  175  U.  S.,  211;  Loewe  v. 
Lawior,  208  U.  S.,  274. 


304  CONSTITUTIONAL  LAW 

Amendment  (60).  The  principal  questions  upon  which 
courts  are  likely  to  differ  in  the  future  concern  the  ex- 
tent of  congressional  power  to  regulate  matters  that  af- 
fect interstate  commerce  only  incidentally.  If  the  con- 
nection is  too  remote  Congress  cannot  act,  but  here  is 
much  room  for  difference  of  opinion. 

^  301.  Congressional  power  to  enlarge  the  field  of  state 
action.  After  the  decision  in  Leisy  v.  Hardin  and  the 
passage  of  the  Wilson  act  permitting  the  states  to  regu- 
late interstate  shipments  of  liquor  after  their  arrival 
in  the  state  (§  297,  above),  the  constitutionality  of  the 
Wilson  act  was  at  once  attacked.  It  was  urged  with  much 
force  that  if  the  Constitution  made  the  regulation  of  this 
matter  exclusively  for  Congress,  Congress  could  not  dele- 
gate its  own  exclusive  powers  to  the  states.  The  Su- 
preme Court  decided  that  Congress's  complete  power 
over  the  subject  enabled  it  to  determine  what  matters  did 
not  require  national  regulation,  and  at  what  point  state 
regulation  might  begin,  and  so  upheld  the  act  (61). 
How  far  Congress  might  go  in  making  such  determina- 
tions is  unsettled.  A  possible  distinction  has  been  sug- 
gested between  permitting  the  states  to  regulate  the  sales 
within  their  boundaries  and  permitting  them  to  forbid 
contracts  to  ship  goods  into  the  state,  the  latter  transac- 
tion necessarily  taking  place  in  more  than  one  state,  and 
BO  perhaps  not  even  permissible  to  a  state  by  act  of 
Congress  (62). 


(60)  Monongahela  Co.  v.  United  States,  148  U.  S.,  312. 

(61)  In  re  Rahrer,  140  U.  S.,  545. 

(62)  Rhodes  v.  Iowa,  170  U.  S.,  412,  424. 


THE  FEDERAL  GOVERNMENT        305 

Section  7.    The  Maeitime  Power. 

§302.  Extent  of  jurisdiction.  The  Constitution, 
Article  III,  section  2,  §  1,  provides  that  the  Federal  judi- 
cial power  shall  extend  to  all  cases  of  admiralty  and 
maritime  jurisdiction.  In  England  the  admiralty  juris- 
diction extended  only  so  far  as  the  tide  ebbed  and  flowed. 
England  being  a  small  island  the  ebb  and  flow  of  the 
tide  fairly  measured  the  limits  of  navigability  of  its  riv- 
ers; but,  when  it  was  attempted  to  apply  a  similar  test 
to  the  great  interior  rivers  and  lakes  of  this  country, 
difficulties  at  once  appeared.  At  first  the  tidal  test  was 
used,  with  the  result  of  excluding  Federal  admiralty 
jurisdiction  on  the  great  lakes  and  over  the  greater  part 
of  our  interior  rivers.  Later,  this  was  overruled  and  the 
Federal  admiralty  jurisdiction  now  extends  over  all  navi- 
gable waters  of  the  United  States  (63).  This  does  not 
include,  however,  all  water  in  the  country  that  is  actually 
navigable.  It  comprehends  only  such  navigable  waters 
as  are  accessible  by  water  from  a  state  other  than  that  in 
which  they  lie.  For  instance,  Great  Salt  Lake,  being  in- 
accessible by  water  from  any  other  state  than  Utah,  is 
not  a  navigable  water  of  the  United  States,  and  is  not 
under  the  Federal  admiralty  jurisdiction.  Lake  Tahoe, 
on  the  boundary  between  California  and  Nevada,  is  a 
Federal  water,  because  each  part  of  it  is  accessible  by 
water  from  another  state.  The  great  lakes  and  most 
navigable  rivers  in  this  country  are  Federal  waters,  but 
a  part  of  a  river  may  be  so  obstructed  by  falls  or  dams 


(63)     The  Daniel  Ball,  10  Wall.,  557. 


306  CONSTITUTIONAL  LAW 

that  it  is  inaccessible  by  water  from  other  states.  In 
such  a  case  it  is  a  state  water  only  (64). 

§  303.  ArtiflciaJ  waters.  The  Federal  jurisdiction  ex- 
tends over  artificial  waters,  like  canals,  as  well  as  nat- 
ural ones,  provided  only  that  the  artificial  water  be  con- 
nected with  other  navigable  waters  leading  out  of  the 
state.  The  Erie  canal  is  thus  subject  to  Federal  juris- 
diction (65). 

§  304.    Maritime  jmisdiction  distinct  from  commercial 

power.  The  early  cases  confused  the  maritime  jurisdic- 
tion of  the  United  States  with  its  jurisdiction  over  inter- 
state commerce,  and  refused  to  permit  a  Federal  juris- 
diction over  the  purely  internal  navigation  of  a  state. 
The  later  decisions  have  now  established  that  the  two 
subjects  are  distinct,  although  to  considerable  extent 
governing  the  same  subject  matter.  Matters  connected 
with  the  navigation  of  navigable  waters  of  the  United 
States  are  within  the  maritime  jurisdiction,  even  though 
the  commerce  concerned  is  purely  internal.  On  the  other 
hand,  if  the  commerce  is  interstate  or  foreign  the  Federal 
jurisdiction  governs  traffic  by  land  as  well  as  water  (66). 

§  305.  Federal  jurisdiction  is  legislative  as  well  as 
judiciaL  The  clause  in  the  Constitution  quoted  at  the 
beginning  of  this  section  is  in  the  judiciary  article,  and 
purports  to  concern  only  the  jurisdiction  of  the  Federal 
courts.  Other  clauses  of  the  same  article  confer  upon 
the  Federal  courts  a  judicial  jurisdiction  for  which  there 


(64)  Commonwealth  v.  King,  150  Mass.,  221. 

(65)  The  Robert  W.  Parsons,  191  U.  S.,  17. 

(66)  In  re  Garnett,  141  U.  S..  1. 


THE  FEDERAL  GOVERNMENT  307 

is  no  corresponding  legislative  power.  For  instance,  the 
Federal  courts  may  hear  controversies  between  citizens 
of  different  states  over  the  title  to  land  in  one  state,  hut 
Congress  may  not  legislate  concerning  state  land  titles 
in  such  a  case.  The  Federal  courts  appear  to  hold  that 
Congress  has  full  legislative  power  over  maritime  affairs, 
in  addition  to  the  jurisdiction  of  the  courts  (67).  The 
source  of  this  power  has  never  been  clearly  explained. 
Perhaps  it  is  incidental  to  the  full  control  the  United 
States  has  over  our  external  relations,  inasmuch  as  for- 
eign water-borne  traffic  may  traverse  any  water  naviga- 
ble from  the  sea,  if  local  regulations  permit  it,  and  in 
any  event  much  of  this  traffic  is  upon  the  high  seas. 

§  293  (continued).  [See  p.  297.]  In  the  Minnesota 
Rate  Cases,  decided  in  June,  1913,  the  Federal  Supreme 
Court  held  that  the  direct  regulation  of  internal  rates  by  a 
state  was  not  invalidated,  at  least  without  the  action  of 
Congress,  merely  because  the  competitive  effect  of  such 
rates  virtually  compelled  carriers  to  make  voluntarily  a 
corresponding  alteration  of  their  interstate  rates. 


CHAPTER  XV. 

MONEY  AND  BANKING. 

§  306.  Constitutional  provisions.  The  clauses  of  the 
United  States  Constitution  that  somewhat  directly  con- 
cern the  state  and  national  powers  over  money  and  bank- 
ing are  as  follows: 

*'[The  Congress  shall  have  power]  to  borrow  money 
on  the  credit  of  the  United  States ;    .    .    . 

**To  coin  money,  regulate  the  value  thereof,  and  of  for- 
eign coin. 

*'No  state  shall  coin  money;  emit  bills  of  credit;  [or] 
make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts"  (1). 

These  provisions  were  agreed  to  in  the  Philadelphia 
convention  without  serious  controversy.  The  various  ex- 
periments with  paper  money  that  were  tried  during  the 
Eevolution  and  just  afterwards  by  a  number  of  the  states 
had  produced  general  conviction  upon  this  point  among 
the  commercial  classes  who  exercised  the  principal  influ- 
ence in  favor  both  of  the  formation  and  the  adoption  of 
the  Constitution. 

§307.  Bills  of  credit.  There  being  no  prohibition 
against  the  United  States  government  issuing  bills  of 


(1)     Art.  I,  Bee.  8,  §§  2  and  5;  nee.  10,  §  1. 

308 


THE  FEDERAL  GOVERNMENT  309 

credit  it  has  done  this  freely  upon  various  occasions. 
The  first  was  during  the  war  of  1812. 

The  prohibition  upon  the  issue  by  states  of  bills  of 
credit  has  been  liberally  interpreted  in  favor  of  the  bor- 
rowing power  of  the  states.  In  only  one  instance  has  the 
Federal  Supreme  Court  held  obligations  issued  by  a 
state  to  be  void  as  bills  of  credit.  In  1821  Missouri  passed 
a  statute  authorizing  state  loans  of  sums  less  than  $200 
to  its  citizens  on  personal  securities.  The  loans  were  to 
be  made  by  issuing  certificates  in  denominations  between 
50c  and  $10,  which  were  to  be  receivable  for  all  taxes 
and  for  the  salaries  and  fees  of  state  officers.  The  faith 
of  the  state  was  pledged  for  the  redemption  of  these  cer- 
tificates, and  one-tenth  of  them  were  to  be  retired  annu- 
ally. A  majority  of  the  Supreme  Court  held  these  certifi- 
cates to  be  bills  of  credit  (2). 

On  the  other  hand,  the  bills  issued  by  state  banks,  which 
ordinarily  circulated  freely  as  currency,  are  not  state 
bills  of  credit,  even  when  the  state  owns  all  of  the  stock 
in  the  bank  (3).  Coupons  of  Virginia  bonds,  payable  to 
bearer  so  that  they  could  pass  from  hand  to  hand  and 
receivable  for  all  state  taxes,  were  held  not  to  be  bills 
of  credit  (4).  In  a  recent  case  Texas  issued  state  war- 
rants to  pay  its  debts,  when  there  was  no  money  in  the 
treasury,  in  denominations  of  $1  and  $5,  printed  on  bank 
note  paper  of  ordinary  size,  payable  to  bearer,  and  by 
law  made  receivable  by  public  officers  for  all  taxes  and 


(2)  Craig  v.  Missouri,  4  Pet.,  410. 

(3)  Briscoe  v    Bank  of  Kentuclty,  11  Pet.,  257., 

(4)  Poindexter  v.  Greenhow,  114  ./.  S.,  270. 


310  CONSTITUTIONAL  LAW 

public  dues,  and  disbursable  by  the  state  as  money  to 
public  creditors  who  would  receive  them  at  par  as  money. 
Payments  due  the  state  school  fund  from  railroads  might 
also  be  made  in  these  warrants  by  any  railroad  who  would 
receive  them  at  par  for  its  freight  and  passenger  traffic. 
"When  received  by  the  state  they  were  not  to  be  reissued. 
The  Supreme  Court  held  these  warrants  not  to  be  bills 
of  credit.  They  were  not  bills  of  credit  unless  they  were 
"designed  to  circulate,  in  the  common  transactions  of 
business,  as  money";  and  provisions  designed  to  facili- 
tate their  receipt  by  the  state  for  its  dues  were  not  suffi- 
cient to  indicate  any  improper  purpose.  The  court  said: 
''The  decisions  of  this  court  have  shown  great  reluct- 
ance, under  this  provision  as  to  bills  of  credit,  to  inter- 
fere with  or  reduce  the  very  important  and  necessary 
power  of  the  states  to  pay  their  debts  by  delivering  to 
their  creditors  their  written  promises  to  pay  them  on 
demand,  and  in  the  meantime  to  receive  the  paper  as  pay- 
ment of  debts  due  the  state  for  taxes  and  other  like 
matters"  (5). 

§  308.  Bank  notes.  As  intimated  in  the  preceding  sub- 
section the  states  may  authorize  state  banks  to  issue 
bills  that  circulate  generally  as  currency,  although  not 
legal  tender.  One  of  the  earliest  acts  of  the  United 
States  government  was  to  charter  a  national  bank,  which 
issued  bank  notes  and  conducted  a  general  banking  busi- 
ness, as  well  as  aided  the  government  in  its  fiscal  opera- 
tions.   The  national  power  to  create  such  an  institution, 


(5)     Houston  &  Texas  Railroad  Co.  v.  Texas,  177  U.  S.,  66. 


THE  FEDERAL  GOVERNMENT        311 

after  much  discussion,  was  finally  settled  in  the  great 
case  of  McCulloch  v.  Maryland  (6)  in  1819.  The  powers 
of  the  United  States  to  raise  revenue  and  to  disburse  it 
involve,  by  implication,  the  power  to  make  such  use  of 
its  cash  surpluses  as  to  supply  commercial  needs  for  a 
stable  circulating  medium.  Other  governments  having 
these  powers  and  the  power  to  borrow  money  find  it  con- 
venient to  exercise  them  through  the  medium  of  national 
banks,  and  the  United  States  can  do  the  same. 

During  the  Civil  war  Congress  taxed  state  bank  notes 
out  of  existence  in  order  that  the  field  might  be  fully  occu- 
pied by  its  own  treasury  and  national  bank  notes,  and 
this  also  was  upheld  as  a  further  means  of  exercising 
these  pov  .rs  (7). 

§  309.  Legal  tender.  The  power  to  prescribe  what 
may  legally  be  offered  by  a  debtor  to  discharge  such  of 
his  obligations  as  are  payable  in  money  is  an  important 
function  of  government.  The  location  of  this  power,  in 
the  United  States,  is  not  specifically  prescribed  by  the 
Constitution,  but  it  is  left  to  inference.  The  United 
"States  is  given  the  power  to  "coin  money,  regulate  the 
lvalue  thereof,  and  of  foreign  coin";  and  the  states  are 
^forbidden  to  coin  money  or  imake  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts  (§  306).  It 
|appears,  therefore,  that  the  states  may  make  gold  and 
silver  coin  a  legal  tender;  but  it  does  not  appear  ex- 
ipressly  whether  the  United  States  may  make  its  action  in 
!this  respect  exclusive  if  it  chooses. 


(6)  4  Wheat.  316. 

(7)  Veazie  Bank  v.  Fenno,  8  Wall.,  533. 


312  CONSTITUTIONAL  LAW 

It  has  always  been  understood  that  the  United  States, 
having  the  power  to  coin  money,  has  all  customary  inci- 
dental powers  connected  therewith,  including  that  of 
making  such  coined  money  a  legal  tender  (8).  Can  Con- 
gress also  declare  that  nothing  shall  be  legal  tender  ex- 
cept what  it  prescribes!  During  the  "free  silver"  con- 
troversy of  1893  a  law  was  proposed  in  Colorado  making 
Mexican  silver  a  legal  tender  for  Colorado  debtors.  Be- 
fore Congress  had  prescribed  what  should  be  legal  ten- 
der, such  legislation  would  doubtless  be  valid.  After  the 
Ke volution,  it  is  said  that  the  scarcity  of  American  coin 
caused  legislation  making  English  and  Spanish  coins  a 
legal  tender  for  a  period.  Doubtless  Congress  may  ex- 
clude all  state  regulation  of  this  matter  if  it  Ci.  '^oses,  and 
its  present  legislation  seems  designed  to  cover  the  whole 
field. 

Some  years  ago  a  few  states  passed  laws  forbidding 
the  so-called  *'gold  contracts,"  by  which  debtors  agreed 
to  pay  in  gold  coin  only,  of  a  standard  weight  and  fine- 
ness. Several  judges  of  the  United  States  Supreme 
Court  have  apparently  concurred  in  a  dictum  that  such 
laws  are  inconsistent  with  the  act  of  Congress  giving  a 
legal  tender  quality  to  golH  coin,  the  reasoning  being 
that  if  Congress  makes  gold  a  legal  tender  a  state  cannot 
forbid  it  to  be  thus  used,  even  exclusively,  by  private 
contract  (9). 

§  310.  Government  notes  as  legal  tender.  Prior  to  the 
Civil  war  no  attempt  was  made  by  the  United  States 


(8)  Hepburn  v.  Griswold,  8  Wall.,  608,  615. 

(9)  Woodruff  V.  MisBisBippl.  162  U.  S.,  291,  306-9. 


THE  FEDERAL  GOVERNMENT        313 

government  to  make  its  bills  of  credit  a  legal  tender  for 
private  debts.  The  pressure  of  the  war,  however,  and 
the  increasing  diflficulty  of  borrowing  at  reasonable  rates 
of  interest  induced  Congress  in  1862  to  pass  an  act  mak- 
ing United  States  notes  receivable  for  debts  due  to  or 
from  the  United  States,  except  import  duties  and  inter- 
est on  the  public  debt;  and  in  addition  to  make  them  a 
legal  tender  in  payment  of  all  debts,  public  and  private, 
within  the  United  States,  except  as  aforesaid. 

The  constitutionality  of  this  was  much  doubted,  but 
the  law  was  upheld  in  fifteen  out  of  seventeen  state  courts 
before  which  it  came  before  a  case  finally  reached  the 
Federal  Supreme  Court.  Meanwhile  it  was  decided  that 
the  ordinary  "debts"  did  not  include  state  taxes,  which 
the  states  could  require  to  be  paid  in  coin;  and  that  it 
did  not  include  contracts  by  their  express  terms  requir- 
ing the  payment  of  coin  (10).  It  referred  only  to  obliga- 
tions payable  in  money  generally. 

Finally,  in  1867,  a  case  came  before  the  Supreme  Court 
involving  the  constitutional  question  at  issue.  A  debtor 
was  sued  upon  a  promissory  note  given  and  payable  be- 
fore the  legal  tender  acts  were  passed.  After  the  passage 
of  the  acts  the  debtor  tendered  United  States  notes  in 
payment  of  his  debt,  the  tender  was  refused,  and  the 
notes  were  paid  into  court.  The  highest  court  of  Ken- 
tucky declared  the  legal  tender  law  unconstitutional,  and, 
after  over  two  years '  consideration  of  the  case,  the  United 
States  Supreme  Court  affirmed  the  Kentucky  decision  by 


(10)     Lane  County  v.  Oregon,  7  Wall.,  71;   Bronson  v.  Rodes,  7 
Wall.,  229. 


314  CONSTITUTIONAL  LAW 

a  vote  of  five  to  three.  The  argument  of  the  majority 
was,  briefly,  first,  that  Congress  had  no  power  to  make 
its  bills  of  credit  legal  tender  at  all,  especially  not  to 
make  them  legal  tender  for  debts  already  in  existence, 
because  this  added  very  little  to  the  value  of  the  legal 
tender  notes;  and  second,  even  if  Congress  had  some 
power  to  make  its  notes  a  legal  tender,  it  amounted  to 
taking  property  without  due  process  of  law  to  make  them 
legal  tender  for  previous  debts.  A  promissory  note  pay- 
able in  money,  given  before  1862,  was  intended  by  both 
parties  to  be  payable  in  what  was  then  money — gold  and 
silver  coin,  and  a  creditor  could  not  be  compelled  to  ac- 
cept paper  money  of  a  less  value.  If  Congress  could  not 
require  all  creditors  to  accept  50c  where  $1  was  due, 
it  equally  could  not  require  creditors  to  accept  a  50c 
paper  dollar  where  a  $1  coined  one  was  due  (11). 

§  311.  Same  (continued).  Though  the  decision  in  Hep- 
burn V.  Griswold  was,  strictly  speaking,  applicable  only 
to  cases  like  that,  where  the  debt  was  in  existence  before 
the  legal  tender  acts  were  passed,  yet  the  reasoning  of 
the  majority  seemed  to  deny  to  Congress  the  power  to 
make  United  States  notes  legal  tender  even  for  future 
debts;  and  great  uneasiness  and  consternation  was  cre- 
ated in  business  circles,  the  vast  majority  of  then  (1870) 
existing  debts  having  been  incurred  since  the  legal  tender 
acts  and  in  reliance  upon  them.  It  was  understood  that 
the  question  was  to  be  reargued  and  meanwhile  business 
judgment  upon  the  matter  was  suspended. 

There  was  one  vacancy  upon  the  Supreme  Court  when 


(11)     Hepburn  v.  Griswold,  8  Wall.,  603. 


THE  FEDERAL  GOVEiRNMENT  315 

Hepburn  v.  Griswold  was  decided,  and  before  the  deci- 
sion was  announced  one  of  the  majority  judges  resigned, 
though  it  did  not  take  effect  until  after  the  announce- 
ment of  the  decision.  Two  new  judges  nominated  previ- 
ously by  President  Grant  were  confirmed  by  the  Senate 
on  the  day  Hepburn  v.  Griswold  was  decided.  A  case 
then  pending  in  court  involved  the  question  of  the  valid- 
ity of  the  acts  as  applied  to  contracts  made  after  their 
passage,  and  by  a  vote  of  five  to  four  the  acts  were  de- 
clared constitutional  on  grounds  that  applied  to  con- 
tracts made  before  their  passage  as  well  as  after.  The 
acts  were  upheld  on  the  grounds  that  they  were  reason- 
ably necessary  to  carry  on  the  war,  and  so  justified  under 
the  power  to  make  war;  and  also  because  the  United 
States,  having  the  power  to  issue  bills  of  credit  and  to 
borrow  money,  might  do  those  things  by  any  means 
within  the  usage  of  governments  generally.  This  in- 
cluded borrowing  by  means  of  legal  tender  bills  of  credit. 
Governments  generally  have  exercised  this  power  in  time 
of  need,  and  contracts  payable  in  money  are  made  sub- 
ject to  the  power  of  the  government  to  declare  what  shall 
be  money  when  they  are  paid  (12). 

After  the  war  steps  were  taken  for  some  time  to  reduce 
the  United  States  legal  tender  notes,  the  so  called ' '  green- 
backs"; but  in  1878  Congress  ceased  this  policy  and 
ordered  their  reissue  as  fast  as  the  old  ones  were  can- 
celled or  destroyed.  At  this  date  the  act  could  no  longer 
be  justified  as  a  war  measure  and  so  its  opponents  once 
more  challenged  its  validity.     It  was  finally  upheld  in 


(12)     Legal  Tender  Cases,  12  Wall.,  457. 


316  CONSTITUTIONAL  LAW 

1884  as  the  exercise  of  a  power  legitimately  implied  from 
the  power  to  borrow  money  and  to  issue  bills  of  credit. 
Just  as  the  power  to  coin  money  gave  Congress  by  im- 
plication the  power  to  make  it  a  legal  tender,  so  the 
power  to  issue  bills  of  credit  contained  a  similar  impli- 
cation (13). 

312.  Present  exclusive  Federal  control  of  money. 
The  final  result  of  the  decisions  discussed  in  this  chap- 
ter has  been  to  give  the  United  States  complete  control 
over  the  money  of  the  country,  whether  in  the  form  of 
coin  or  paper  currency,  with  full  power  to  make  such  part 
of  either  a  legal  tender  as  may  please  Congress,  and  with 
like  power  to  exclude  the  states  wholly  or  partly  from  any 
regulation  of  the  subject.  Legal  tender  United  States 
coin,  demand  certificates  therefor,  legal  tender  United 
States  notes,  national  bank  notes  (which,  though  not 
legal  tender,  are  ordinarily  accepted  for  most  debts), 
federal  reserve  notes,  and  federal  reserve  bank  notes, 
now  comprise  the  entire  monetary  circulating  medium 
of  this  country. 


(13)     JuilUard  v.  Greenman,  110  U.  S.  421. 


CHAPTER  XVI. 

VARIOUS  FEDERAL  POWERS. 

§  313.  Scope  of  chapter.  The  more  complex  Federal 
powers,  about  the  nature  and  extent  of  which  there  has 
been  a  considerable  amount  of  litigation,  have  been 
treated  in  separate  chapters.  The  principal  remaining 
powers  are  dealt  with  briefly  in  this  chapter. 

§  314.  Federal  powers  of  taxation.  The  Constitution, 
Article  I,  section  8,  §  1,  provides :  ' '  Congress  shall  have 
power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts  and  provide  for  the  common  de- 
fense and  general  welfare  of  the  United  States;  but  all 
duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States." 

Section  9,  §§  4  and  5,  provide:  '*No  capitation,  or 
other  direct  tax  shall  be  laid,  unless  in  proportion  to  the 
census  or  enumeration  hereinbefore  directed  to  be  taken. 

"No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  state." 

Besides  these  express  prohibitions,  there  is  an  implied 
restriction  upon  the  United  States,  growing  out  of  the 
nature  of  our  dual  government,  which  prevents  Congress 
from  taxing  the  essential  governmental  functions  of  a 
state.    ''Thus  limited,  and  thus  only,  the  Federal  power 

317 

Vol.  xn— 22 


318  CONSTITUTIONAL  LAW 

of  taxation  reaches  every  subject  and  may  be  exercised 
at  discretion"  (1). 

§  315.  Limitations  on  taxation:  Uniformity.  Export 
taxes.  It  is  clear  that  the  imiformity  required  is  a  geo- 
graphical uniformity,  not  a  requirement,  for  instance, 
that  a  tax  shall  not  be  progressive  as  the  value  of  what 
is  taxed  increases.  Thus,  a  Federal  progressive  inherit- 
ance tax  is  valid,  which  taxes  large  bequests  at  a  higher 
rate  than  small  ones,  provided  that  it  applies  in  all  of 
the  states  alike  (2).  (As  to  the  meaning  of  the  words 
"United  States"  in  this  clause,  see  §  260,  above.) 

Exports,  under  the  Constitution,  mean  only  goods  go- 
ing to  foreign  countries  from  a  state  (§  275,  above). 
The  only  case  where  a  Federal  tax  has  been  held  to  be 
on  exports  is  Fairbank  v.  United  States  (3),  where  a 
Federal  stamp  tax  on  bills  of  lading  for  exports  was  held 
to  be  virtually  a  tax  upon  exports  because  they  were 
customarily  accompanied  by  bills  of  lading.  An  excise 
tax  on  goods  generally  is  not  invalid  merely  because  some 
of  them  may  be  intended  for  export  later. 

§  316.  Same:  Direct  taxes.  The  provision  that  Fed- 
eral direct  taxes  must  be  apportioned  among  the  states 
according  to  population  was  apparently  adopted  by  the 
convention  without  any  precise  understanding  of  what 
direct  taxes  were.  Hamilton  suggested  that  the  words 
meant  capitation  taxes,  taxes  on  land,  and  general  taxes 
on  all  of  the  property  of  individuals.    It  was  early  held 


(1)  The  License  Tax  Cases,  5  Wall.,  p.  471. 

(2)  Knowlton  v.  Moore.  178  U.  S.,  41. 

(3)  181  U.  S..  283. 


THE  FEDERAL  GOVERNMENT        319 

that  taxes  on  specific  kinds  of  personal  property  and  on 
occupations  were  excise  taxes,  and  not  direct.  A  Federal 
income  tax  levied  during  the  Civil  war  was  upheld  as  an 
excise  tax,  without  inquiry  as  to  the  source  of  income. 
In  1894  Congress  enacted  another  income  tax,  the  valid- 
ity of  which  was  elaborately  argued  before  the  Supreme 
Court.  A  majority  of  the  court  decided  that  taxes  upon 
real  estate  or  personal  property  in  the  mass  were  direct 
taxes,  and  that  taxes  on  the  income  from  such  property 
was  within  the  fair  scope  of  the  prohibition  (4).  In  1909 
the  Sixteenth  Amendment  to  the  Constitution  was  pro- 
posed to  the  states  by  Congress,  permitting  the  govern- 
ment to  levy  an  income  tax  without  apportionment,  and 
was  adopted  in  1913. 

A  Federal  inheritance  tax  is  an  excise  upon  the  priv- 
ilege of  succeeding  to  land  or  other  property  and  is  not 
a  direct  tax  (5). 

§317.  Same:  Taxation  of  state  governmental  func- 
tions. Just  as  a  state  may  not  tax  functions  of  the  Fed- 
eral government,  the  Federal  government  may  not  tax 
state  functions.  The  reasons  for  this  are  given  in  §  347, 
below.  Thus,  the  United  States  may  not  tax  the  salary 
of  state  ofl&cers,  nor  any  steps  in  state  judicial  proceed- 
ings, nor  the  property  or  borrowing  power  of  a  state  or 
municipal  corporation  (including  state  or  municipal 
bonds)   (6). 


(4)  Pollock  V.  Farmers  Loan  and  Trust  Co.,  157  U.  S.,  429;  158 
U.  S.,  601  (all  of  the  previous  cases  on  the  subject  are  here  fully 
discussed). 

(5)  Knowlton  v.  Moore,  178  U.  S.,  41. 

(6)  Pollock  V.  Farmers  Loan  and  Trust  Co.,  157  U.  S.,  428,  584-6. 


320  CONSTITUTIONAL  LAW 

But  the  United  States  may  tax  a  legacy  to  a  state  or 
city,  and  may  tax  the  business  of  selling  liquor,  even 
though  it  is  carried  on  by  a  state  (7).  This  kind  of  a 
governmental  function  is  not  sufficiently  vital  to  the  state 
to  escape  Federal  taxation. 

§  318.  Bankruptcy.  The  powers  of  the  United  States 
over  the  subject  of  bankruptcy  are  dealt  with  fully  in  the 
article  on  that  subject  in  Volume  X  of  this  work. 

§  319.  Weights  and  measures.  The  Constitution, 
Article  I,  section  8,  §  5,  gives  Congress  power  to  ''fix  the 
standards  of  weights  and  measures." 

Congress  has  never  passed  any  law  regarding  the  use 
of  any  particular  standards  of  weights  and  measures  in 
this  country,  although  it  has  made  the  use  of  the  metric 
system  permissible.  By  common  usage  English  stand- 
ards have  generally  been  used  in  this  country,  except 
for  scientific  purposes,  where  the  metric  system  is  ordi- 
narily employed.  There  has  been  some  question  whether, 
in  the  absence  of  Congressional  legislation,  the  states 
could  act  upon  the  matter.  Several  state  courts  have 
intimated  that  they  could  and  one  inferior  Federal  court 
has  suggested  the  contrary. 

§  320.  Postal  powers.  The  plenary  power  of  Congress 
over  the  entire  subject  of  the  post-office  has  already  been 
noticed  in  another  connection.  See  §§  28,  253,  above. 
The  business  may  be  made  a  government  monopoly  and 
private  competition  made  criminal  (8).  Congress  may 
classify  mail  matter,  apply  different  rates  of  postage  to 


(7)  South  Carolina  v.  United  States,  199  U.  S.,  437. 

(8)  United  States  v.  Bromley,  12  How.,  88;  U.  S.  R.  S.,  S§3&81-93. 


THE  FEDERAL  GOVERNMENT  321 

different  articles,  and  prohibit  certain  classes  of  matter 
altogether.  It  may  exclude  from  the  mails  matter  that 
is  fraudulent  or  otherwise  injurious  to  the  public,  and  it 
may  refuse  to  deliver  mail  to  persons  who  are  using  the 
postal  service  for  improper  purposes.  The  reasonable 
administration  of  these  rules  may  be  delegated  to  postal 
officials  (9). 

§  321.  Possible  extent  of  postal  powers.  Under  its 
power  to  extend  the  limits  of  mailable  matter,  it  would 
seem  competent  for  Congress  to  raise  the  limit  of  weight 
so  as  to  include  all  the  parcel  business  now  done  by  ex- 
press companies,  which  is  included  in  the  postal  service 
of  most  European  governments.  It  is  quite  possible  that 
many  articles  of  freight  might  also  be  included.  The 
United  States  Supreme  Court  has  left  open  the  question 
whether  telegraph  lines  may  not  be  acquired  by  Congress 
as  part  of  its  postal  business  (10).  This,  too,  is  a  com- 
mon practice  of  foreign  governments.  It  seems  likely 
that  the  United  States  could  construct  postroads,  in- 
cluding railroads,  for  its  postal  service  if  it  saw  fit.  An 
early  Kentucky  case  admitted  the  existence  of  this  Fed- 
eral power  very  broadly,  and  its  existence  has  never  been 
denied  by  the  Federal  Supreme  Court  (11). 

§322.  Copyright  and  patents.  The  Constitution, 
Article  I,  section  8,  §  8,  gives  Congress  power  ''to  pro- 
mote the  progress  of  science  and  useful  arts,  by  securing 


(9)  Public  Clearing  House  v.  Coyne,  194  U.  S.,  497. 

(10)  Pensacola  Telegrapli  Co.  v.  Western  Union  Co.,  96  U.  S„  1. 

(11)  Dickey  v.  Maysfleld  Turnpike  Co.,  7  Dana  113;  California  v. 
Pacific  Railroad,  127  U.  S„  1. 


322  CONSTITUTIONAL  LAW 

for  limited  times  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries. ' ' 

The  principal  questions  concerning  copyright  and 
patents  are  fully  treated  in  the  articles  upon  these  sub- 
jects in  Volume  IV  of  this  work.  The  patent  itself,  which 
is  the  right  to  exclude  all  others  from  the  manufacture, 
use,  or  sale  of  the  things  patented,  is  a  Federal  franchise, 
and  as  such  cannot  be  taxed  or  otherwise  interfered  with 
by  state  law  (12).  The  same  is  true  of  copyright  (13). 
The  patented  article,  however,  may  be  taxed  or  regu- 
lated like  other  property  by  the  states.  The  patent  and 
the  article  manufactured  thereunder  are  thus  distinct 
kinds  of  property,  the  first  one  involving  a  Federal 
right  (14). 

§  323.  Maritime  offenses  and  offenses  against  the  law 
of  nations.  The  Constitution,  Article  I,  section  8,  §  10, 
gives  Congress  power  "to  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas,  and  offenses  against 
the  law  of  nations." 

The  manner  in  which  Congress  may  define  piracies, 
for  instance,  is  treated  in  the  article  on  Criminal  Law, 
§  4,  in  Volume  III.  The  latter  part  of  the  Constitutional 
provision  above  quoted  gives  to  Congress  considerable 
power  that  has  never  been  exercised.  Under  it,  Con- 
gress apparently  might  enact  laws  to  protect  aliens  in 
this  country  from  violence  or  other  misconduct,  which, 
under  the  law  of  nations,  might  become  a  ground  of  com- 


(12)  In  re  Sheffield,  64  Fed.,  833. 

(13)  People  V.  Roberts,  159  N.  Y.,  75. 

(14)  Webber  v.  Virginia,  103  U.  S.,  334. 


THE  FEDERAL  GOVERNMENT  323 

plaint  for  foreign  powers.  Under  this  clause,  it  has  been 
held  that  the  United  States  may  punish  the  counterfeit- 
ing in  a  state  of  securities  of  any  foreign  government, 
though  it  could  not  punish  the  counterfeiting  of  a  state 
bank-note  (15). 

§  324.  Indians.  When  the  Constitution  was  adopted 
there  still  existed  many  powerful  Indian  tribes  within 
the  borders  of  the  states,  and  in  the  western  lands  con- 
trolled by  the  United  States.  These  tribes,  even  when 
in  a  state,  ordinarily  exercised  a  complete  control  over 
their  internal  affairs,  and  their  relations  with  the  states 
and  the  United  States  were  governed  by  treaties  made 
with  formalities  similar  to  those  between  independent 
nations.  The  Constitution  gave  the  power  to  make 
treaties  to  the  President  and  senate,  and  withdrew  it 
from  the  states.  In  consequence,  it  was  early  held  that 
the  sole  external  power  of  governing  the  Indians  lay 
with  the  United  States  (16). 

The  only  legislative  power  expressly  conferred  upon 
Congress  by  the  Constitution  in  regard  to  the  Indians  is 
the  power  to  regulate  commerce  with  the  Indian  tribes 
(17).  Prior  to  1871  Federal  control  over  the  Indians 
was  exercised  chiefly  by  means  of  treaties,  but  in  that 
year  an  act  of  Congress  forbade  further  dealings  with 
them  by  the  treaty-making  power.  Later  Congress  legis- 
lated directly  for  the  Indians,  though  situated  in  the 


(15)  United  States  v.  Arjona,  120  U.  S.,  479;  Tennessee  v.  Davis, 
100  U.  S.,  257,  280. 

(16)  Worcester  v.  Georgia,  6  Pet,  515. 

(17)  Const.,  Art.  I.  sec.  8,  §  3 


324  CONSTITUTIONAL  LAW 

states,  upon  a  variety  of  non-commercial  subjects,  among 
other  things  punishing  them  for  crime.  These  laws  were 
upheld,  upon  the  ground  that  historically  the  Federal 
government  had  had  full  control  over  the  Indian  tribes 
through  the  war  and  treaty-making  powers;  but  that 
these  were  not  exclusive  methods  of  dealing  with  the 
Indians,  and  might  be  supplanted  by  legislation  (18). 
Only  thus,  it  would  seem,  could  the  prohibition  of  Indian 
treaties  be  justified,  for  Congress  doubtless  could  not 
forbid  the  President  and  senate  to  make  treaties  with 
genuinely  independent  nations. 

When  Congress  has  by  statute  permitted  Indians 
whoUv  to  leave  the  tribal  relation  and  to  become  citizens 
of  the  United  States,  its  special  powers  over  the  Indian 
ceases,  and  he  is  subject  to  the  Federal  jurisdiction  only 
as  other  citizens  are  who  may  reside  in  the  various  states. 
But  Congress  may  retain  such  partial  tribal  control  as 
it  sees  fit  (19). 

As  to  the  citizenship  of  Indians  by  birth  see  §  85, 
above. 

§325.  Aliens.  *'It  is  an  accepted  maxim  of  intema/- 
tional  law,  that  every  sovereign  nation  has  the  power,  as 
inherent  in  sovereignty  and  essential  to  self-preservation^ 
to  forbid  the  entrance  of  foreigners  within  its  dominions, 
or  to  admit  them  only  in  such  cases  and  upon  such  condi- 
tions as  it  may  see  fit  to  prescribe.  In  the  United  States 
this  power  is  vested  in  the  national  government,  to  which 
the  Constitution  has  committed  the  entire  control  of  in- 
ternational relations,  in  peace  as  well  as  in  war.  It  belongs 


(18)  United  States  v.  Kagama,  118  U.  S.,  375. 

(19)  Matter  of  Heff,  197  U    S..  488;  Tiger  v.    Western  Co.,  221 
U.   S..  286. 


THE  FEDERAL  GOVERNMENT        325 

to  the  political  department  of  the  government,  and  may 
be  exercised  either  through  treaties  made  by  the  Presi- 
dent and  senate,  or  through  statutes  enacted  by  Con- 
gress" (20). 

**The  right  of  a  nation  to  expel  or  deport  foreigners, 
who  have  not  been  naturalized  or  taken  any  steps  towards 
becoming  citizens  of  the  country,  rests  upon  the  same 
grounds,  and  is  as  absolute  and  unqualified  as  the  right 
to  prohibit  and  prevent  their  entrance  into  the 
country"  (21). 

These  quotations  correctly  state  the  power  of  the 
United  States  respecting  aliens,  implied  from  the  gov- 
ernment's complete  control  over  our  international  rela- 
tions. The  alien  who  has  been  stopped  at  our  borders, 
although  physically  within  our  boundaries,  is  to  be  re- 
garded as  if  stopped  just  outside,  so  that  he  is  not  en- 
titled to  invoke  those  constitutional  guarantees  which  ap- 
ply to  persons  lawfully  within  the  country,  such  as  free 
speech  and  the  like  (22). 

The  rigor  of  the  Federal  laws  excluding  or  expelling 
Asiatics  are  constitutionally  based  upon  these  doctrines. 
The  government's  right  to  entrust  the  administration 
of  these  laws  entirely  to  executive  tribunals  is  discussed 
in  §  138,  above.  The  power  to  exclude  or  expel  without 
jury  trial  does  not  include  the  power  to  punish  aliens  by 
imprisonment  at  hard  labor  for  violating  the  exclusion 


(20)  Nishimura  Ekiu  v.  United  States,  142  U.  S.,  p.  659. 

(21)  Fong  Yue  Ting  v.  United  States,  149  U.  S.,  698. 

(22)  United  States  v.  Williams,  194  U.  S.,  p.  292 ;  United  States  v. 
Ju  Toy,  198  U.  S.,  253,  263. 


326  CONSTITUTIONAL  LAW 

acts.  Criminal  punishment  by  the  United  States  is  sub- 
ject to  the  provisions  of  the  Fifth  Amendment  (23). 

§  326.  Federal  treaty  powers.  The  Constitution, 
Article  II,  section  1,  provides  with  respect  to  the  Presi- 
dent :  * '  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur." 

There  are  no  express  limitations  upon  the  power  of 
the  United  States  to  make  treaties,  except  those  prohi- 
bitions, contained  chiefly  in  Article  I,  section  9,  and  in  the 
amendments,  which  limit  the  exercise  of  Federal  powers 
of  government  generally.  Doubtless  the  United  States 
by  treaty  could  not  gain  the  power  to  tax  exports  or  take 
property  without  compensation,  these  acts  being  ex- 
pressly forbidden.  The  important  question  which  is  not 
yet  definitely  settled  is  how  far  the  United  States  may 
control,  by  treaty,  matters  which  Congress  could  not 
control  by  legislation.  For  instance,  Congress  is  given 
by  the  Constitution  no  power  to  regulate  the  holding  of 
land  in  a  state.  If  the  United  States,  by  treaty  with 
France,  permits  Frenchmen  to  hold  land  in  the  United 
States,  is  this  valid  against  a  state  prohibition  of  local 
land  ownership  by  aliens?  This  has  been  upheld  in 
several  instances. 

* '  That  the  treaty  power  of  the  United  States  extends  to 
all  proper  subjects  of  negotiation  between  our  govern- 
ment and  the  governments  of  other  nations,  is  clear.  It 
is  also  clear  that  the  protection  which  should  be  afforded 
to  the  citizens  of  one  country  owning  property  in  another. 


(23)     Wong  Wing  v.  United  States,  163  U.  S.,  228. 


THE  FEDERAL  GOVERNMENT        327 

and  the  manner  in  which  that  property  may  be  trans- 
ferred, devised,  or  inherited,  are  fitting  subjects  for  such 
negotiation  and  of  regulation  by  mutual  stipulations  be- 
tween the  two  countries.  .  .  .  The  treaty  power,  as  ex- 
pressed in  the  Constitution,  is  in  terms  unlimited  except 
by  those  restraints  which  are  found  in  that  instrument 
against  the  government  itself  and  that  of  the  states.  It 
would  not  be  contended  that  it  extends  so  far  as  to 
authorize  what  the  Constitution  forbids,  or  a  change  in 
the  character  of  the  government  or  in  that  of  one  of  the 
states,  or  a  cession  of  any  portion  of  the  territory  of  the 
latter,  without  its  consent.  But  with  these  exceptions, 
it  is  not  perceived  that  there  is  any  limit  to  the  questions 
which  can  be  adjusted  touching  any  matter  that  is  prop^ 
erly  the  subject  of  negotiation  with  a  foreign  country'* 
(24).  Likewise  it  has  been  held  in  Massachusetts  that 
a  Federal  treaty  supersedes  state  laws  regarding  the 
administration  of  property  of  deceased  aliens,  and  may 
limit  the  jurisdiction  of  the  state  courts  in  suits  for  alien 
seamen's  wages  (25).  It  has  also  been  said  that  when 
any  rights  are  secured  to  an  alien  by  treaty.  Congress 
may  legislate  to  protect  these  rights,  although  but  for 
such  treaty  aliens  would  be  obliged  to  rely  upon  state 
laws  only  (26). 

§  327.  Same:  Another  view.  The  view  expressed 
above  is  perhaps  the  one  commonly  held  in  this  country 
by  students  of  the  subject.    It  has  been  strongly  urged, 


(24)  Geofroy  v.  Riggs,  133  U.  S.,  258,  266. 

(25)  Wyman,  Petitioner,  191  Mass.,  276. 

(26)  Baldwin  v.  Franks,  120  U.  S.,  678,  683. 


328  CONSTITUTIONAL  LAW 

in  opposition,  that  the  framers  of  the  Constitution  could 
hardly  have  intended  to  reserve  a  control  of  local  mat- 
ters in  the  states  as  against  Congress,  only  to  permit 
them  to  be  regulated  at  pleasure  by  treaties  between 
the  United  States  and  foreign  nations.  To  the  argument 
that  the  power  to  make  such  arrangements  with  foreign 
nations  is  too  valuable  to  have  been  destroyed  altogether 
by  the  Constitution,  and  so  must  be  with  the  Federal  gov- 
ernment, which  alone  can  make  treaties,  it  is  pointed  out 
that  another  clause  of  the  Constitution  permits  a  state, 
with  the  consent  of  Congress,  to  make  agreements  with 
foreign  powers  (27).  It  is  suggested  that  this  clause 
was  intended  to  enable  each  state,  with  the  consent  of 
Congress,  to  make  agreements  with  foreign  countries 
respecting  the  reciprocal  rights  of  their  inhabitants  (28). 
The  recent  controversy  over  the  alleged  treaty  rights 
of  Japanese  children  in  the  public  schools  of  California 
illustrates  the  interest  and  importance  of  the  subject.  It 
cannot  be  considered  as  yet  settled  either  way  by  the 
Federal  courts. 

§  328.  Federal  districts  within  a  state.  The  Constitu- 
tion, Article  I,  section  8,  §  17,  gives  Congress  power  ' '  to 
exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  states  and  the  acceptance 
of  Congress,  become  the  seat  of  the  government  of  the 
United  States,  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  legislature  of 


(27)  Art.  I,  sec.  10,  §3. 

(28)  William  B.  Mikell,  in  57  American  Law  Register,  435,  528. 


THE  FEDERAL  GOVEiRNMENT  329 

the  state  in  wliich  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings. '  ^ 

The  cession  contemplated  by  this  clause  was  made  by 
Virginia  and  Maryland  and  constitutes  the  District  of 
Columbia,  in  which  are  located  the  city  of  Washington 
and  the  seat  of  the  Federal  government.  In  1841  the  part 
of  the  District  south  of  the  Potomac  river  was  ceded  back 
to  Virginia  by  Congress.  The  casual  reading  of  the  latter 
part  of  the  clause  quoted  above  might  create  the  im- 
pression that  this  was  intended  to  take  the  place  of  the 
acquisition  of  land  by  the  Federal  power  of  eminent 
domain.  The  distinction  between  the  Federal  powers 
over  territory  acquired  in  the  two  ways  is  this:  The 
United  States  has  exclusive  jurisdiction  in  all  particulars 
over  land  purchased  with  the  consent  of  the  state  legisla- 
ture. Over  land  taken  by  eminent  domain  the  United 
States  has  governmental  powers  for  Federal  purposes 
only.  Thus,  if  land  for  a  post  office  is  purcha.sed  in 
Chicago  without  the  consent  of  Illinois,  the  state  retains 
such  jurisdiction  over  the  property  as  does  not  interfere 
with  postal  purposes.  If  Illinois  consents  to  the  acqui- 
sition, it  loses  all  jurisdiction  not  expressly  retained  (29). 

§  329.  Military  powers:  Constitutional  provisions. 
The  Constitution,  Article  I,  section  8,  §§  11-16,  gives  Con- 
gress power: 

"To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water; 

**To  raise  and  support  armies,  but  no  apprt)priation 


(B9)     Fort  Leav^aworth  Railroad  CJo.  v.  Lowe,  114  U.  S.,  525. 


330  CONSTITUTIONAL  LAW 

of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

' '  To  provide  and  maintain  a  navy ; 

''To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces; 

"To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections  and  repel 
invasions  ; 

''To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  re- 
serving to  the  states  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  accord- 
ing to  the  discipline  prescribed  by  Congress." 

Section  9,  §  2,  provides :  ' '  The  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended,  unless  when  in 
cases  of  rebellion  or  invasion  the  public  safety  may 
require  it." 

§  330.  Same:  During  actual  hostilities.  Tliese  provi- 
sions give  the  United  States  all  of  the  belligerent  powers 
ordinarily  exercised  by  sovereign  nations  in  carrying  on 
war,  foreign  or  domestic.  Although  Congress  alone  may 
declare  war,  the  executive  department  may  recognize  its 
existence  in  fact,  in  advance  of  congressional  declaration, 
and  may  take  appropriate  military  action  to  meet  the 
situation.  Thus,  battles  between  the  American  and  Mexi- 
can troops  had  taken  place  before  Congress  formally  de- 
clared the  existence  of  the  Mexican  war;  and  imjjortant 
armed  collisions  took  place  during  the  Civil  war  before 


THE  FEDERAL  GOVERNMENT        331 

any  action  on  the  part  of  Congress.  Indeed,  the  exist- 
ence of  civil  war  is  rarely  accompanied  by  any  public 
declaration  of  the  fact,  the  test  of  its  existence  being  that 
the  regular  course  of  justice  in  the  courts  is  interrupted 
by  the  insurrectionary  proceedings  (30). 

When  a  state  of  war  exists  as  a  fact,  the  entire  terri- 
torial area  in  insurrection  may  be  treated  as  hostile  terri- 
tory, and  property  and  persons  within  it  may  be  dealt 
with  according  to  the  laws  of  war,  although  in  fact  a 
considerable  number  of  inhabitants  be  loyal  citizens  of 
the  United  States  (31).  As  a  part  of  its  belligerent 
powers  Congress  may  confiscate  the  property  of  resi- 
dents of  the  enemy's  country,  or  of  hostile  territory,  as 
well  as  all  property  so  situated  as  to  be  of  use  to  the 
enemy,  no  matter  where  the  owner  lives.  This  power 
was  exercised  to  a  considerable  extent  by  Congress  dur- 
ing the  Civil  war,  and  it  was  upheld  as  justified  by  the 
war  power,  and  not  invalid  either  as  an  ex  post  facto  law, 
a  punishment  for  crime  without  a  jury  trial,  or  a  taking 
of  property  without  due  process  of  law  (32). 

The  state  militia  may  be  called  into  Federal  service  for 
the  purposes  specified  in  the  Constitution,  whenever  the 
proper  Federal  authorities  may  decide  this  to  be  neces- 
sary. An  act  of  Congress  at  present  commits  the  de- 
termination of  this  necessity  to  the  President.  The 
United  States  is  not  dependent  upon  state  militia,  but 
may  raise  its  own  armies  by  volunteer  enlistment  or  by 


(30)  The  Prize  Cases,  2  Black,  635. 

(31)  Ibid. 

(32)  Miller  v.  United  States,  11  Wallace  268. 


332  CONSTITUTIONAL  LAW 

draft  or  conscription,  as  was  largely  done  during  the 
Civil  war  (33). 

The  period  of  beginning  and  ending  hostilities  is  fixed 
by  the  public  acts  of  the  political  departments  of  govern- 
ment, and  will  be  followed  by  the  courts.  These  periods 
differed  slightly  in  different  southern  states  during  the 
Civil  war  (34). 

The  rules  of  warfare  proper  to  be  observed  between 
belKgerents,  and  the  general  conduct  of  hostilities  under 
the  rules  of  war  are  discussed  on  the  article  on  Litema- 
tional  Law  in  Volume  X  of  this  work. 

§  331.  Military  jurisdiction.  In  Ex  parte  Milligan 
(35)  it  was  said  by  one  of  the  judges : 

' '  There  are  under  the  Constitution  three  kinds  of  mili- 
tary jurisdiction:  one  to  be  exercised  both  in  peace  and 
war ;  another  to  be  exercised  in  time  of  foreign  war  with- 
out the  boundaries  of  the  United  States,  or  in  time  of  re- 
bellion and  civil  war  within  states  or  districts  occupied 
by  rebels  treated  as  belligerents;  and  a  third  to  be  ex- 
ercised in  time  of  invasion  or  insurrection  within  the 
limits  of  the  United  States,  or  during  rebellion  within  the 
limits  of  states  maintaining  adhesion  to  the  national  gov- 
ernment, when  the  public  danger  requires  its  exercise. 
The  first  of  these  may  be  called  jurisdiction  under  mili- 
tary law,  and  is  found  in  acts  of  Congress  prescribing 
rules  and  articles  of  war,  or  otherwise  providing  for  the 
government  of  the  national  forces;  the  second  may  be 


(33)  Kneedler  v.  Lane,  45  Pa.,  pp.  274-323. 

(34)  The  Protector,  12  Wallace  700. 

(35)  4  Wall.,  2. 


THE  FEDERAL  GOVERNMENT        333 

distinguished  as  military  government,  superseding,  as 
far  as  may  be  deemed  expedient,  the  local  law,  and  ex- 
ercised by  the  military  commander  under  the  direction 
of  the  President,  with  the  express  or  implied  sanction  of 
Congress;  while  the  third  may  be  denominated  martial 
law  proper,  and  is  called  into  action  by  Congress,  or 
temporarily,  when  the  action  of  Congress  cannot  be  in- 
vited, and  in  the  case  of  justifying  or  excusing  peril,  by 
the  President,  in  times  of  insurrection  or  invasion,  or  of 
civil  or  foreign  war,  within  the  districts  or  localities 
where  ordinary  law  no  longer  adequately  secures  public 
safety  and  private  rights." 

§  332.  Same:  Controverted  questions.  As  regards  the 
first  two  of  these  military  jurisdictions,  military  law  and 
military  government,  there  is  no  conflict  of  opinion.  As 
regards  the  third  there  was  much  controversy  during  the 
Civil  war.  The  concrete  question  most  frequently  pre- 
sented was  whether  the  President  could  suspend  the  writ 
of  habeas  corpus  as  to  persons  arrested  by  the  govern- 
ment in  parts  of  the  country  not  the  scene  of  insurrec- 
tion or  hostilities,  or  could  try  them  by  martial  law. 
Where  Congress  has  not  authorized  this,  a  presidential 
suspension  of  the  writ  is  apparently  illegal  (36) ;  but  a 
contrary  practice  was  common  during  the  Civil  war  and 
was  subsequently  ratified  by  Congress,  or  indemnity  pro- 
vided for  executive  officers.  The  Supreme  Court  divided 
five  to  four  in  a  dictum  against  the  power  of  the  President 
or  Congress  to  cause  the  trial  of  men  by  martial  law 
where  the  courts  are  open  and  not  subject  to  hostile  in- 


(36)     Ex  parte  Merryman,  Taney,  246. 
foi.  xn— 23 


334  CONSTITUTIONAL  LAW 

terference,  but  it  cannot  be  said  that  the  question  has  been 
definitely  settled  (37). 

§333.  Quartering  soldiers  in  private  houses.  **No 
soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but 
in  a  manner  to  be  prescribed  by  law"  (38). 

Happily  it  has  not  been  necessary  for  the  Federal 
courts  to  consider  this  provision  in  this  country.  It 
doubtless  does  not  apply  to  territory  in  actual  insurrec- 
tion or  at  the  scene  of  actual  hostilities,  as  military  opera- 
tions in  such  places  would  be  governed  by  the  war  power. 
See  §  330,  above. 


(37)  Ex  parte  Milligan,  4  Wall.,  2. 

(38)  Const,  Amend.  III. 


CHAPTER  XVII. 
INTERGOVERNMENTAL  RELATIONS. 

§  334.  States  in  many  respects  treated  as  foreign  to 
each  other.  Except  where  controlled  by  some  provision 
of  the  Constitution,  express  or  implied,  the  states  stand 
in  the  same  relation  to  each  other  as  do  foreign  countries. 
Particularly  is  this  true  with  respect  to  their  right  to 
exclude  each  other's  corporations,  and  with  reference 
to  their  domestic  laws  and  policies.  The  principal  phases 
of  these  are  treated  in  the  article  on  Conflict  of  Laws,  in 
Volume  IX  of  this  work.    See  §§  149,  180,  above. 

Section  1.     Interstate  Privileges  and  Immunities  of 

Citizens. 

§  335.  Scope  of  constitutional  provision.  The  Consti- 
tution, Article  IV,  section  2,  §  1,  provides :  ' '  The  citizens 
of  each  state  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  states. ' ' 

This  clause,  in  substantially  the  same  form,  was  in 
the  Articles  of  Confederation  that  preceded  the  Constitu- 
tion. It  secured  a  close  community  of  interest  between 
the  people  of  the  several  states,  and  secured  them  against 
the  disabilities  of  alienage  in  all  parts  of  the  Union.  Of 
the  scope  and  purpose  of  the  clause,  the  Supreme  Court 
has  said : 

335 


336  CONSTITUTIONAL  LAW 

' '  The  constitutional  provision  there  alluded  to  did  not 
create  those  rights,  which  it  called  privileges  and  im- 
munities of  citizens  of  the  states.  It  threw  around  them 
in  that  clause  no  security  for  the  citizen  of  the  state  in 
which  they  were  claimed  or  exercised.  Nor  did  it  pro- 
fess to  control  the  power  of  the  state  governments  over 
the  rights  of  its  own  citizens.  Its  sole  purpose  was  to 
declare  to  the  several  states,  that  whatever  those  rights, 
as  you  grant  or  establish  them  to  your  own  citizens,  or  as 
you  limit  or  qualify,  or  impose  restrictions  on  their  ex- 
ercise, the  same,  neither  more  nor  less,  shall  be  the  meas- 
ure of  the  rights  of  citizens  of  other  states  within  your 
jurisdiction"  (1). 

§  336.  Enumeration  of  rights  protected.  As  to  what 
constitute  the  principal  privileges  and  immunities  of  citi- 
zens in  the  several  states  that  are  protected  against  dis- 
crimination by  this  clause  of  the  Constitution,  an  enumer- 
ation made  by  Mr.  Justice  Washington  in  1825  has  been 
frequently  quoted  with  approval.    He  said : 

''The  inquiry  is,  what  are  the  privileges  and  immuni- 
ties of  citizens  in  the  several  states?  We  feel  no  hesita- 
tion in  confining  these  expressions  to  those  privileges 
and  immunities  which  are,  in  their  nature,  fundamental ; 
which  belong,  of  right,  to  the  citizens  of  all  free  govern- 
ments ;  and  which  have,  at  all  times,  been  enjoyed  by  the 
citizens  of  the  several  states  which  compose  this  Union, 
from  the  time  of  their  becoming  free,  independent,  and 
sovereign.  What  these  fundamental  principles  are,  it 
would  perhaps  be  more  tedious  than  difficult  to  enumerate. 


(1)     Slaughter  House  Cases,  16  Wall.,  36,  77. 


THE  FEDERAL  GOVERNMENT        337 

They  may,  however,  be  all  comprehended  under  the  fol- 
lowing general  heads :  Protection  by  the  government ;  the 
enjoyment  of  life  and  liberty,  with  the  right  to  acquire 
and  possess  property  of  every  kind,  and  to  pursue  and 
obtain  happiness  and  safety ;  subject  nevertheless  to  such 
restraints  as  the  government  may  justly  prescribe  for 
the  general  good  of  the  whole.  The  right  of  a  citizen  of 
one  state  to  pass  through,  or  to  reside  in  any  other  state, 
for  purposes  of  trade,  agriculture,  professional  pursuits, 
or  otherwise;  to  claim  the  benefit  of  the  writ  of  habeas 
corpus;  to  institute  and  maintain  actions  of  any  kind 
in  the  courts  of  the  state;  to  ta\e,  hold  and  dispose  of 
property,  either  real  or  personal;  and  an  exemption  from 
higher  taxes  or  impositions  than  are  paid  by  the  other 
citizens  of  the  state,  may  be  mentioned  as  some  of  the 
particular  privileges  and  immunities  of  citizens,  which 
are  clearly  embraced  by  the  general  description  of  privi- 
leges deemed  to  be  fundamental ;  to  which  may  be  added, 
the  elective  franchise,  as  regulated  and  established  by  the 
laws  or  constitution  of  the  state  in  which  it  is  to  be  ex- 
ercised. These,  and  many  others  which  might  be  men- 
tioned, are,  strictly  speaking,  privileges  and  immunities, 
and  the  enjoyment  of  them  by  the  citizens  of  each  state, 
in  every  other  state,  was  manifestly  calculated  (to  use 
the  expressions  of  the  preamble  of  the  corresponding  pro- 
vision in  the  old  Articles  of  Confederation)  'the  better  to 
secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  states  of  the 
Union'  '^  (2). 


(2)     Corfleld  v.  Coryell,  4  Wash.  C.  C,  371,  380,  quoted  in  Blake  v. 
McClung,  172  U.  S.  at  248-49. 


338  CONSTITUTIONAL  LAW 

§337,    mnstrations  of  forbidden  discriminations.    N 

few  particular  instances  of  invalid  discrimination  by  a 
state  against  the  citizens  of  other  states  in  favor  of  its 
own  citizens  may  be  mentioned.  Maryland  attempted  to 
require  traders,  not  permanent  residents  of  the  state,  to 
take  out  licenses  for  the  sale  of  goods.  It  was  held  that 
citizens  of  other  states  could  not  be  prevented  by  this 
method  from  selling  goods  in  Maryland  upon  the  same 
terms  as  permitted  to  Maryland  citizens  (3).  Likewise 
the  property  of  citizens  of  other  states  cannot  be  taxed 
by  a  state  at  a  higher  rate  or  in  a  different  manner  from 
that  in  which  it  taxes  the  property  of  its  own  citizens 
(4).  If  a  state  permits  its  own  citizens  to  hold  property 
as  trustees,  or  to  take  certain  property  by  law,  it  must 
extend  the  same  privileges  to  citizens  of  other  states  as 
to  property  within  its  borders  (5).  Nor  may  a  state  give 
to  its  own  citizens  who  are  creditors  a  preference  over  the 
citizens  of  other  states,  who  are  also  creditors,  in  the  dis- 
tribution of  the  assets  of  an  insolvent  business  located 
within  the  state  limits.  All  must  be  permitted  to  share  on 
the  same  terms  (6). 

§  338.  Valid  discriminations:  Proprietary  rights.  It 
must  not  be  supposed,  however,  that  absolutely  no  dis- 
crimination may  be  made  by  a  state  in  favor  of  its  own 
citizens.  Discriminations  based  solely  upon  citizenship 
are  bad,  but  citizenship  or  permanent  residence  in  a 
state  may  be  necessarily  accompanied  by  circumstances, 


(3)  Ward  v.  Maryland,  12  Wall.,  418. 

(4)  Re  Stanford's  Estate,  126  Cal.,  112. 

(5)  Roby  V.  Smith.  131  Ind.,  342. 
(6)^  Blake  v.  McClung,  172  U.  S.,  239. 


THE  FEDERAL  GOVERNMENT        339 

or  may  give  rise  to  situations,  upon  which  a  discrimina- 
tion may  be  reasonably  and  validly  based,  despite  the 
fact  that  it  is  necessarily  or  usually  associated  with  citi- 
zenship or  non-citizenship  in  the  state.  For  instance,  the 
right  to  fish  in  the  oyster  beds  of  New  Jersey,  these  being 
the  common  property  of  the  citizens  of  the  state,  was  re- 
served solely  to  New  Jersey  citizens  by  that  state.  This 
was  upheld,  as  being  but  the  exercise  of  ordinary  prop- 
erty rights  in  excluding  non-owners  from  the  use  of  prop- 
erty, although  ownership  here  happened  to  be  restricted 
to  New  Jersey  citizens  (7).  Similar  discriminations  in 
regard  to  fish,  wild  game,  and  the  running  navigable 
waters  of  a  state  have  been  sustained.  Upon  similar  prin- 
ciples may  be  justified  the  practices  of  most  states  in 
charging  higher  fees  to  non-citizens  than  to  citizens  for 
admission  to  their  schools  and  higher  educational  insti- 
tutions. The  state  owns  these  and  administers  them  in  a 
proprietary  as  well  as  in  a  governmental  capacity.  The 
citizens  of  a  state,  being  the  common  proprietors,  may 
properly  claim  some  advantages  therein  that  are  not 
equally  free  to  non-proprietors.  Doubtless  foreign  citi- 
zens could  not  be  charged  a  higher  fee  than  domestic 
citizens  for  the  use  of  the  courts  or  for  the  protection  of 
the  police,  although  the  court-houses  and  the  weapons 
of  the  officers  of  the  law  are  owned  by  the  state,  but  this 
is  perhaps  because  dispensing  justice  and  protecting 
from  injury  are  historically  essential  functions  of  gov- 
ernment, while  affording  an  education  is  not. 
§  339.    Same:    Procedural  rights  as  affected  by  dom- 


(7)     Corfield  v.  Coryell,  4  Wash.  C.  C,  371. 


340  CONSTITUTIONAL  LAW 

idl.  Non-residence  in  a  state,  though  usually  associated 
with  non-citizenship  in  it,  may  be  a  just  ground  for  dis- 
crimination in  a  variety  of  situations  besides  those  in- 
volving proprietary  rights.  Resident  defendants  may 
obtain  the  benefit  of  the  statute  of  limitations,  while  non- 
residents may  not,  because  suit  could  have  been  begun 
against  residents  at  any  time  during  the  statutory  period, 
while  the  absence  of  the  non-residents  prevents  this.  An 
attachment  may  be  allowed  against  the  property  of  non- 
resident defendants,  when  not  allowed  against  resident 
defendants,  for  the  non-residents  are  likely  to  stay  out  of 
the  state  and  leave  the  plaintiff  to  follow  them  as  best 
he  can  after  getting  judgment.  Moreover,  if  a  non- 
resident remains  out  of  the  state  altogether,  there  is  no 
way  in  which  a  resident  plaintiff  may  secure  a  valid 
judgment  against  him  in  the  state,  except  by  attaching 
his  property.  The  United  States  Supreme  Court  has 
said: 

*'We  must  not  be  understood  as  saying  that  a  citizen  o¥ 
one  state  is  entitled  to  enjoy  in  another  state  every  privi- 
lege that  may  be  given  in  the  latter  to  its  own  citizens. 
There  are  privileges  that  may  be  accorded  by  a  state  to 
its  own  people  in  which  citizens  of  other  states  may  not 
participate  except  in  conformity  to  such  reasonable  regu- 
lations as  may  be  established  by  the  state.  For  instance, 
a  state  cannot  forbid  citizens  of  other  states  from  suing 
in  its  courts,  that  right  being  enjoyed  by  its  own  people ; 
but  it  may  require  a  non-resident,  although  a  citizen  of 
another  state,  to  give  bonds  for  costs,  although  such  bond 
be  not  required  of  a  resident.    Such  a  regulation  of  the 


THE  FEDERAL  GOVERNMENT        341 

internal  affairs  of  a  state  cannot  reasonably  be  character- 
ized as  hostile  to  the  fundamental  rights  of  citizens  of 
other  states.  So,  a  state  may,  by  a  rule  uniform  in  its 
operation  as  to  citizens  of  the  several  states,  require 
residence  within  its  limits  for  a  given  time  before  a  citi- 
zen of  another  state,  who  becomes  a  resident  thereof, 
shall  exercise  the  right  of  suffrage  or  become  eligible  to 
office.  It  has  never  been  supposed  that  regulations  of 
that  character  materially  interfered  with  the  enjoyment 
by  citizens  of  each  state  of  the  privileges  and  immunities 
secured  by  the  Constitution  to  citizens  of  the  several 
states.  The  Constitution  forbids  only  such  legislation 
affecting  citizens  of  the  respective  states  as  will  sub- 
stantially or  practically  put  a  citizen  of  one  state  in  a 
condition  of  alienage  when  he  is  within  or  when  he  re- 
moves to  another  state,  or  when  asserting  in  another  state 
the  rights  that  commonly  appertain  to  those  who  are  part 
of  the  political  community  known  as  the  people  of  the 
United  States,  by  and  for  whom  the  government  of  the 
Union  was  ordained  and  established"  (8). 

§340.  Same:  Occupational  qualifications  as  affected 
by  domicil.  Wherever  citizenship  or  residence  in  a  state, 
or  such  citizenship  or  residence  for  a  certain  period,  may 
be  thought  better  to  qualify  a  person  for  some  occupa- 
tion or  profession  to  be  followed  in  the  state,  this  may 
be  required.  Lawyers  are  very  commonly  required  to 
be  citizens  of  the  state  in  which  they  practice,  as  they  are 
officers  of  the  courts.  The  same  requirement  is  some- 
times made  of  retail  liquor  dealers,  one  court  saying: 


(8)     Blake  v.  McClung,  172  U.  S.,  239,  256-257. 


3/42  CONSTITUTIONAL  LAW 

"It  is  not  an  unreasonable  requirement  that  a  person 
who  desires  to  avail  himself  of  a  license  to  retail  intoxi- 
cating liquors  shall  submit  himself  to  the  jurisdiction 
of  the  state,  by  becoming  an  inhabitant  thereof,  to  the 
end  that  he  may  be  readily  apprehended  and  punished 
for  any  violation  of  the  law  in  connection  with  his  busi- 
ness" (9).  In  many  states  a  certain  number  of  years' 
practice  in  the  state  is  accepted  in  lieu  of  an  examination 
for  a  license  to  practice  medicine.  A  similar  amount  of 
practice  outside  of  a  state  is  not  accepted.  This  dis- 
crimination has  been  sustained  on  the  ground  that  the 
local  practitioner  is  likely  to  have  a  better  knowledge  of 
local  diseases,  and  also  proof  of  his  character  and  ex- 
perience are  more  easily  obtainable  (10).  A  requirement 
that  barbers  be  citizens  of  the  state  where  they  pursue 
their  occupation  is  invalid  (11). 

Section  2.     Other  Interstate  Relations. 

§  341.  Interstate  recognition  of  public  acts,  records, 
and  judicial  proceedings.  "Full  faith  and  credit  shall 
be  given  in  each  state  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  state,  and  the  Con- 
gress may  by  general  laws  prescribe  the  manner  in  which 
such  acts,  records  and  proceedings  shall  be  proved,  and 
the  effect  thereof"  (12). 

The  effect  of  this  constitutional  provision  is  discussed 


(9)  Welsh  V.  State,  126  Ind..  p.  78. 

(10)  Ex  parte  Spinney,  10  Nev.,  323. 

(11)  Templar  v.  Michigan  Board  of  Examiners,  131  Mich.,  254. 

(12)  Const.,  Art.  IV,  sec.  1. 


THE  FEDERAL  GOVERNMENT        343 

in  the  article  on  Conflict  of  Laws  in  Volume  IX  of 
this  work. 

§  342.  Interstate  extradition  and  rendition.  **A  per- 
son charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  an- 
other state,  shall,  on  demand  of  the  executive  authority 
of  the  state  from  which  he  fled,  be  delivered  up  to  be  re- 
moved to  the  state  having  jurisdiction  of  the  crime"  (13). 

This  provision  is  discussed  in  the  article  on  Criminal 
Procedure,  §§  35-40,  in  Volume  III  of  this  work. 

' '  No  person  held  to  service  or  labor  in  one  state,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due"  (14). 

This  clause  referred  especially  to  fugitive  slaves,  and 
is  now  obsolete,  unless  perhaps  it  might  apply  to  some 
form  of  service  like  that  of  a  sailor,  which  may  be  spe- 
cifically enforced  without  violation  of  the  Thirteenth 
Amendment  against  slavery.    See  §  102,  above. 

§  343.  Agreements  between  states.  "No  state  shall, 
without  the  consent  of  Congress  .  . ,  enter  into  any  agree- 
ment or  compact  with  another  state"  (15). 

The  required  consent  of  Congress  to  interstate  agree- 
ments need  not  be  given  expressly  nor  with  any  par- 
ticular formalities.    It  is  sufficient  if  Congress  by  some 


(13)  Const.,  Art.  IV,  sec.  2,  §2. 

(14)  Const,  Art  IV,  sec.  2,  §3. 

(15)  Art  I.  sec.  10,  §  3. 


344  CONSTITUTIONAL  LAW 

positive  act  signify  its  approval  or  assent.  For  in- 
stance, the  admission  by  Congress  of  Kentucky  as  a  state 
amounted  to  an  assent  to  an  agreement  between  Ken- 
tucky and  Virginia  by  which  the  former  was  detached 
from  the  territory  of  the  latter  (16).  Recently  it  has 
been  decided  that  this  prohibition  upon  state  agreements 
applies  only  to  agreements  having  a  substantial  tendency 
to  increase  the  political  power  or  influence  of  one  or  more 
of  the  states  affected.  It  applies  to  an  agreement  by 
which  the  territory  of  one  state  is  substantially  increased, 
but  not  to  an  agreement  in  good  faith  to  settle  a  disputed 
boundary  line  (17).  Uniform  legislation  by  states  re- 
specting railroads  or  waters  connecting  them  is  also  valid. 

Section  3.    Relations    Between    the   United    States 
AND  THE  States. 

§  344.  Nature  of  the  Union.  ' '  The  Constitution,  in  all 
its  provisions,  looks  to  an  indestructible  Union,  composed 
of  indestructible  states.*'  This  political  theory  was  fi- 
nally settled  by  the  Civil  war.  So  far  as  the  Supreme 
Court  has  discussed  the  status  of  the  southern  states  dur- 
ing that  war,  it  appears  that  territorially  speaking  the 
insurgent  states  were  never  out  of  the  Union,  nor  were 
their  Federal  obligations  and  those  of  their  citizens  sus- 
pended during  the  struggle.  The  illegal  conduct  of  the 
state  governments  and  of  their  people  suspended  their 
rights  as  members  and  citizens  of  the  Union,  and  those 
rights  were  later  restored  by  various  acts  of  Congress. 


(16)  Green  v.  Biddle,  8  Wheaton,  pp.  85-87. 

(17)  Virginia  v.  Tennessee,  148  U.  S.,  520. 


THE  FEDERAL  GOVERNMENT        345 

If  a  state  chose  to  elect  no  Federal  senators  and  repre- 
sentatives or  temporarily  to  suspend  the  operations  of 
its  state  government  it  would  also  meanwhile  lose  its 
corresponding  Federal  rights  (18). 

§  345.  Participation  of  the  states  in  the  Federal  gov- 
ernment. Certain  state  action  at  regular  intervals  is  by 
the  Constitution  necessary  to  the  continued  existence  of 
the  Federal  government.  Each  state  prescribes  the  qual- 
ifications for  electors  of  United  States  senators  and  of 
representatives  in  Congress;  and  each  state  chooses,  as 
its  legislature  directs,  its  quota  of  electors  to  choose  the 
President  of  the  United  States  (19). 

§346.  State  interference  with  Federal  functions:  Con- 
flicting laws.  ''This  Constitution,  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof ; 
and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land ;  and  the  judges  in  eveiy  state  shall  be  bound 
thereby,  anything  in  the  Constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding"  (20). 

In  view  of  the  nature  of  the  Federal  government,  prob- 
ably its  laws  and  treaties  would  have  been  superior  to 
conflicting  state  laws,  even  without  this  clause  of  the 
Constitution.  This  provision,  however,  has  placed  the 
matter  beyond  doubt    Direct  conflicts  between  state  and 


(18)  Texas  v.  White,  7  WaU.,  700. 

(19)  Ck)nst.,  Art.  I,  sec.  2,  §1;  Amend.  XVII;  Art  II,  sec.  1,  §2. 

(20)  Art.  VI,  §  2.  « 


346  CONSTITUTIONAL  LAW 

Federal  laws  are  thus  readily  disposed  of  m  constitu- 
tional theory.  Indirect  interferences  by  the  states  with 
Federal  laws  or  functions  offer  more  difficulty. 

§  347.  Same:  State  taxation  of  Federal  agencies  or 
property.  After  the  establishment  of  the  second  United 
States  bank  Maryland  imposed  a  tax  upon  the  issue  of 
bank  notes  by  the  institution.  This  was  declared  invalid 
by  the  Supreme  Court  upon  the  ground  that  it  interfered 
with  the  operation  of  an  agency  created  by  the  Federal 
government  in  the  exercise  of  its  powers  (21).  Likewise 
a  state  may  not  tax  United  States  bonds  owned  and  kept 
within  its  borders.  Such  a  tax  directly  increases  the  rate 
of  interest  that  the  United  States  must  pay  to  purchasers 
of  these  bonds,  and  so  means  a  tax  upon  the  borrowing 
power  of  the  government  (22),  Nor  may  a  state  levy  an 
income  tax  upon  the  salary  of  Federal  officers.  Similarly 
a  state  may  not  tax  any  franchise  granted  by  the  Federal 
government,  such  as  a  railroad  charter,  or  a  patent  (23). 
Of  course  property  owned  by  the  Federal  government 
may  not  be  taxed  (24). 

§  348.  Same:  Taxation  of  property  of  Federal  agents. 
Taxation  remotely  affecting  Federal  functions.  Prop- 
erty owned  by  private  individuals  or  corporations  may 
be  taxed  by  the  states  where  it  is  located,  although  it  is 
employed  in  the  Federal  service,  as,  for  instance,  the 


(21)  McCulloch  T.  Maryland,  4  Wheat,  316. 

(22)  Weston  v.  Charleston,  2  Pet.,  449. 

(23)  California  v.  Central  Pacific  R.  R.  Ck).,  127  U.  S.,  1;  People 
▼.  AsseaBors,  156  N.  Y.,  417. 

(24)  Van  Brocklln  v.  Tennessee,  117  U.  S.,  151. 


THE  FEDERAL  GOVERNMENT  347 

property  of  a  Federal  railroad  corporation  or  that  of  a 
Federal  contractor  (25). 

If  state  taxation  affects  Federal  functions  remotely  in- 
stead of  substantially  it  is  not  invalid,  at  least  unless  ex- 
pressly forbidden  by  Congress.  For  instance,  a  state  may 
tax  the  transfer  of  private  property  at  the  death  of  the 
owner,  including  Federal  bonds  and  legacies  left  to  the 
United  States  (26). 

§  349.  State  interference  with  private  exercise  of  Fed- 
eral rights.  A  state  may  not  interfere  with  any  private 
right  derived  expressly  or  impliedly  from  the  Federal 
Constitution,  laws  or  treaties.  The  principal  express  pro- 
hibitions upon  such  state  interferences,  such  as  those 
against  ex  post  facto  laws,  impairing  the  obligation  of 
contracts,  taking  property  or  liberty  without  due  process 
of  law,  or  denying  the  equal  protection  of  the  laws,  have 
been  discussed  at  length  in  other  parts  of  this  article. 
Private  Federal  rights  under  the  commerce  clause  are 
discussed  in  Chapter  XIV,  §§  279-99.  Implied  rights  are 
entitled  to  the  same  protection.  Thus,  the  right  to  in- 
form Federal  ofl&cers  of  the  commission  of  a  crime  against 
the  United  States  is  an  implied  Federal  right  of  every 
citizen,  and  may  not  be  interfered  with  either  by  states 
or  individuals  (27).  The  right  of  a  witness  to  testify  in 
the  Federal  courts  may  not  be  restrained  by  n  ^''t^te  prose- 
cution for  alleged  perjury  therein  (28). 


(25)  Railroad  Co.  v.  Peuiston,  IS  Wallao?  ? 

(26)  Plummer  v.  Coler,  178  U.  S.,  115. 

(27)  In  re  Quarles,  158  U.  S.,  532. 

(28)  In  re  Loney,  134  U.  S.,  372. 


348  CONSTITUTIONAL  LAW 

§  350.  Federal  interference  with  state  functions.  The 
property  of  the  states,  and  their  essential  governmental 
functions  are  protected  from  Federal  interference  to  sub- 
stantially the  same  extent  as  Federal  functions  are  pro- 
tected from  state  interferences  (29).  Some  illustrations 
of  this  as  regards  Federal  taxation  are  mentioned  in 
§  317,  above. 


(29)    United  States  v.  Railroad  Co.,  17  Wallace  322;  Collector  v. 
Day,  11  WaUace,  113. 


CHAPTER  XVni. 
JURISDICTION  OF   THE   FEDERAL  COURTS. 

Section  1.     In  General. 

§  351.    Classification  of  Federal  judicial  powers.    The 

Constitution,  Article  III,  section  2,  §  1,  provides:  "The 
judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  states;  between  a  state  and  citizens  of  an- 
other state ;  between  citizens  of  different  states ;  between 
citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states;  and  between  a  state  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects." 

It  will  be  noticed  that  practically  the  whole  of  this 
grant  of  judicial  power  falls  into  two  great  classes: 
(1)  cases  dependent  upon  the  character  of  the  question 
litigated;  (2)  cases  dependent  upon  the  character  of  the 
parties  to  the  litigation. 

The  Federal  courts  are  given  jurisdiction  of  all  cases 
involving  the  following  questions,  no  matter  who  are  the 

349 


VoK  Xn— 24 


350  CONSTITUTIONAL  LAW 

parties  to  the  suit:  (a)  oases  in  law  and  equity  arising 
under  the  Federal  Constitution,  laws,  or  treaties;  (b) 
cases  of  admiralty  or  maritime  jurisdiction. 

Likewise,  the  Federal  courts  are  given  jurisdiction  of 
cases  having  tlie  following  parties,  no  matter  what  the 
suit  may  be  about:  (a)  when  ambassadors,  public  minis- 
ters, or  consuls  are  parties ;  (b)  when  the  United  States 
is  a  party;  (c)  when  two  or  more  states  are  antagonistic 
parties ;  (d)  when  a  state  and  citizens  of  another  state  are 
antagonistic  parties;  (e)  when  citizens  of  different  states 
are  antagonistic  parties ;  (f )  when  a  state  or  its  citizens  on 
one  side  and  foreign  states  or  aliens  on  the  other  are  an- 
tagonistic parties. 

§  352.    Objects  of  the  various  judicial  powers.    The 

necessity  of  securing  a  uniform  and  authoritative  con- 
struction of  the  Federal  Constitution,  laws,  and  treaties 
was  a  suflScient  reason  for  giving  the  Federal  courts  juris- 
diction of  questions  involving  the  construction  or  enforce- 
ment of  these.  Such  questions  are  usually  called  "Fed- 
eral questions"  and  will  hereafter  be  referred  to  shortly 
by  that  name.  Obviously,  too,  suits  to  which  the  United 
States  is  a  party  should  be  in  its  courts.  The  national 
government  alone  has  dealings  with  foreign  nations,  and 
so  it  is  appropriate  that  its  courts  should  deal  with  cases 
affecting  the  representatives  of  foreign  nations;  and,  as 
admiralty  matters  are  largely  concerned  with  interna- 
tional intercourse  and  with  transactions  on  the  high  seas, 
where  vessels  are  under  the  flag  of  the  nation  rather  than 
that  of  a  state,  similar  considerations  made  it  advisable 
to  give  the  Federal  courts  jurisdiction  of  such  matters. 


THE  FEDERAL  GOVERNMENT        351 

Before  the  territory  west  of  the  Alleghanies  was  ceded 
to  the  United  States,  there  had  been  conflicting  claims 
to  portions  of  it  on  behalf  of  different  states,  and  in  some 
cases  bloodshed  had  occurred  between  rival  groups  of 
settlers  claiming  the  same  land  under  conflicting  grants. 
To  secure  an  impartial  tribunal  for  the  settlement  of  such 
claims  the  Federal  courts  were  given  jurisdiction  of  them. 

As  the  states  may  not  go  to  war  or  make  treaties  with 
each  other  or  with  foreign  nations,  it  was  necessary  that 
the  Federal  courts  should  be  given  jurisdiction  of  dis- 
putes that  might  arise  between  such  parties ;  and  to  pre- 
vent the  possibilities  of  local  prejudice  in  the  state  courts, 
the  provisions  were  added  which  gave  the  Federal  courts 
jurisdiction  of  suits  between  a  state  or  its  citizens  on  one 
side,  and  citizens  of  different  states  or  aliens  on  the  other. 

§  353.  Power  of  Congress  in  organization  of  Federal 
courts.  The  Constitution,  Article  HI,  section  1,  provides: 
' '  The  judicial  power  of  the  United  States,  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall,  at 
stated  times,  receive  for  their  services,  a  compensation, 
which  shall  not  be  diminished  during  their  continuance 
in  office.'* 

The  power  of  Congress  over  the  organization  of  the 
Federal  courts  is  very  great.  While  it  may  not  directly 
abolish  the  Supreme  Court  it  may  increase  or  diminish 
the  number  of  its  judges  at  pleasure,  subject  to  the  quali- 
fication that  no  sitting  supreme  court  judge  can  be  re- 


352  CONSTITUTIONAL  LAW 

moved  from  the  court  during  good  behavior.  The  inferior 
Federal  courts  may  be  established  and  abrogated  at 
the  will  of  Congress,  though  it  would  seem  that  the  judges 
of  such  inferior  courts  would  be  entitled  to  their  salaries 
during  good  behavior,  even  though  their  court  were  abol- 
ished. The  contrary  practice  was  pursued,  however, 
when  a  number  of  newly  created  Federal  courts  and 
judgeships  were  abolished  by  the  Jeffersonian  RepubU- 
cans  in  1801. 

§  354.  Present  Federal  courts.  The  organization  of 
the  Federal  courts  with  jurisdiction  in  the  states  under 
the  present  acts  of  Congress  is  as  follows : 

(a)  The  United  States  district  courts.  Each  state  is 
divided  into  from  one  to  four  Federal  judicial  districts, 
in  each  of  which  there  is  a  district  court  held  by  one  or 
more  district  judges  appointed  for  that  district. 

(b)  United  States  circuit  courts  of  appeals.  The  ju- 
dicial districts  of  the  United  States  are  divided  by  groups 
of  states  into  nine  circuits,  each  of  which  has  from  two 
to  four  circuit  judges  and  to  each  is  assigned  one  supreme 
court  justice.  In  each  of  the  nine  circuits  there  is  a  court 
of  appeals,  composed  of  three  of  these  judges,  which 
hears  appeals  from  the  decisions  of  the  district  courts  in 
its  respective  circuit.  District  judges  may  also  be  as- 
signed to  this  court  when  necessary. 

(c)  Court  of  claims,  court  of  customs  appeals,  and 
commerce  court.  These  courts,  composed  of  five  judges 
each,  have  jurisdiction  over  special  classes  of  Federal 
cases. 

(d)  United  States  Supreme  Court.  This  is  composed 


THE  FEDERAL  GOVERNMENT        353 

of  nine  jndges,  almost  all  of  whose  work  consists  in  hear- 
ing appeals  from  the  lower  Federal  courts  and  from  the 
highest  state  courts. 

§  355.  Original  and  appellate  jurisdiction.  The  Con- 
stitution, Article  III,  section  2,  §  2,  provides ;  * '  In  all 
cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all 
other  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions,  and  under  such  regulations  as  the  Con- 
gress shall  make." 

Just  as  in  the  organization  of  the  Federal  courts.  Con- 
gress has  very  extensive  powers  over  their  jurisdiction. 
In  only  two  classes  of  cases  is  the  Supreme  Court  given 
original  jurisdiction  by  the  Constitution  (original  juris- 
diction is  the  jurisdiction  of  a  suit  at  its  beginning:  ap- 
pellate jurisdiction  is  jurisdiction  over  it  on  an  appeal 
from  the  decision  of  some  other  tribunal).  Congress  can- 
not enlarge  the  original  jurisdiction  of  the  Supreme 
Court,  but  it  can  give  other  courts  a  jurisdiction  con- 
current with  it  upon  the  subjects  of  its  original 
jurisdiction. 

The  entire  appellate  jurisdiction  of  the  Supreme  Court 
being  placed  under  the  control  of  Congress,  it  can  take 
away  that  court's  appellate  jurisdiction  in  any  class  of 
cases  even  after  the  appeal  has  been  taken  and  argued 
in  the  Supreme  Court  (1).    Congress  may  of  course  pro^. 


(1)     Ex  parte  McCardle,  7  Wall.,  506. 


354  CONSTITUTIONAL  LAW 

vide  that  certain  classes  of  cases  shall  be  finally  decided 
by  Federal  courts  inferior  to  the  Supreme  Court,  and  in 
several  important  classes  of  cases  it  has  conferred  the 
power  of  final  decision  upon  the  circuit  courts  of  appeal. 

§  356.  Exclusive  and  concurrent  jurisdiction.  The 
Constitution  gives  to  the  Federal  courts  no  exclusive 
jurisdiction  of  any  matters  whatever.  For  anything  that 
appears  in  the  Constitution  the  state  courts  may  exercise 
jurisdiction  concurrently  over  all  matters  specified  in  the 
judiciary  article.  The  regulation  of  this  is  entirely  in 
the  hands  of  Congress,  which  may  distribute  the  subjects 
of  possible  Federal  jurisdiction  as  it  pleases.  Under 
present  statutes  Federal  courts  have  exclusive  jurisdic- 
tion of  all  Federal  crimes,  penalties  and  seizures,  of  all 
admiralty,  patent  right,  copyright,  and  bankruptcy  eases, 
of  all  suits  to  which  the  United  States  is  a  party,  and  of 
all  suits  between  a  state  on  one  side  and  another  state  or 
a  foreign  nation  on  the  other  side  (2).  Most  other  possi- 
ble subjects  of  Federal  jurisdiction  may  be  sued  upon 
cither  in  the  state  or  Federal  courts  as  the  parties  to  the 
suit  may  prefer  (concurrent  jurisdiction) ;  but  in  a  few 
instances  Congress  has  left  the  jurisdiction  wholly  with 
the  state  courts.  For  instance,  suits  between  citizens  of 
different  states,  where  no  Federal  question  and  less  than 
$3,000  are  involved,  may  not  be  brought  into  the  Federal 
courts  at  all,  either  originally,  or  by  removal  (§  357),  or 
by  writ  of  error  to  state  courts  (§  358). 

§  357.  Transfer  of  cases  from  state  to  Federal  courts: 
Before  trial.  If  a  suit  between  A  and  B,  citizens  of  Illi- 
nois, turned  in  part  upon  a  Federal  question  within  the 


(2)     U.  S.  R.  S.,  §711. 


THE  FEDERAL  GOVERNMENT  355 

concurrent  jurisdiction  of  the  state  and  Federal  courts, 
the  plaintiff  A  might  at  his  option  bring  suit  against  B 
in  either  the  state  or  Federal  courts  in  Illinois.  Like- 
wise, if  A  lives  in  Indiana  and  B  in  Illinois  A  may  sue 
B  in  a  state  or  Federal  court  of  Illinois  upon  the  ground 
of  diversity  of  citizenship,  no  matter  what  the 
question  at  issue ;  or,  if  A  can  find  B  in  Indiana  he  may 
sue  him  in  the  Indiana  state  courts.  In  the  first  case 
above  put,  if  B  is  sued  in  the  state  courts,  he  may  have 
the  case  removed,  in  its  entirety,  to  the  Federal  courts 
for  trial.  The  defendant  is  as  much  entitled  to  the  bene- 
fits of  the  Federal  courts  upon  Federal  questions  as  is  the 
plaintiff.  In  the  second  case  put  above,  if  A  sues  B  in 
the  Blinois  state  courts,  B  cannot  have  the  case  removed 
to  a  Federal  court.  B  is  being  sued  in  the  courts  of  his 
own  state,  and  if  A  is  willing  to  take  the  chances  of  local 
prejudice  B  cannot  complain.  If,  however,  A  sues  B  in 
the  state  courts  of  Indiana,  B  may  have  the  case  removed 
to  the  Indiana  Federal  courts,  because  he,  a  citizen  of 
Illinois,  is  entitled  to  be  protected  from  the  possibility 
of  local  prejudice  in  favor  of  the  Indiana  plaintiff  in 
the  state  courts  (2a). 

Often  more  than  one  question  is  involved  in  a  case. 
Suppose  there  are  a  dozen  questions  in  a  particular  case, 
only  one  of  which  is  a  Federal  question,  both  parties  be- 
ing citizens  of  New  York.  Owing  to  the  difficulty  and  ex- 
pense of  dividing  a  case  for  separate  trials  in  different 
courts,  the  entire  case  with  all  of  its  questions,  state  and 
Federal,  is  removed  to  the  Federal  courts  or  may  he 
brou^t  there  originally,  if  a  single  question  in  it  is  a 

(2a)     At  present    (1922)    no  suits  may  be  removed  from  state  to 
^Federal  courtB  unless  orer  $S,000  is  involved. 


866  CONSTITUTIONAL  LAW 

Federal  question.  The  Federal  court  will  decide  the  other 
questions  in  the  case  according  to  state  law  as  best  it 
can,  but  the  whole  case  goes  to  the  Federal  courts  (3). 

§  358.  Same:  After  trial.  When  no  Federal  question 
is  involved  in  a  case,  and  both  parties  permit  it  to  go  to 
trial  in  a  state  court,  neither  can  thereafter  take  the  case 
to  a  Federal  court  at  any  later  stage  of  the  proceedings. 
It  being  a  question  of  state  law  only,  and  neither  party 
having  complained  of  local  prejudice,  there  is  no  reason 
for  carrying  the  matter  farther.  When  a  case  involves 
?  Federal  question,  however,  even  though  both  parties 
are  satisfied  to  conduct  it  in  the  first  instance  in  a  state 
court,  yet  it  is  important  for  the  sake  of  uniformity  and 
for  the  security  of  Federal  rights  that  an  ultimate  author- 
itative decision  be  given  by  a  Federal  court.  The  stat- 
utes therefore  provide  that  if  the  highest  state  court  to 
which  the  matter  can  be  carried  decides  against  some 
claim  of  a  Federal  right  set  up  in  the  case,  it  may  be 
carried  to  the  Stipreme  Court  for  decision.  No  part  of 
the  case  is  carried  there  except  that  involving  the  Fed- 
eral question,  and,  if  this  has  been  properly  decided  by 
the  state  court,  it  makes  no  difference  how  poorly  the 
other  questions  in  the  case  may  have  been  dealt  with  by 
the  state  court.  If  the  decision  of  the  state  court  is  in 
favor  of  the  Federal  right  claimed  there  is  no  appeal  to 
the  Federal  courts,  even  though  the  decision  be  erroneous. 
The  Federal  government  is  interested  in  securing  for  its 
laws  at  least  as  much  effect  as  they  are  entitled  to ;  if  a 


(3)     Tennessee  v.  Davis,  100  U.  S.,  257. 


THE  FEDERAL  GOVERNMENT        357 

state  court  cBooses  to  give  them  more  than  this,  that  is 
not  a  matter  for  national  solicitude. 

§  359.  Federal  questions.  A  case  arising  under  the 
Constitution,  the  laws  of  the  United  States,  and  treaties 
made  under  their  authority  exists,  not  only  when  the 
operation  or  effect  of  some  written  clause  of  the  Consti- 
tution, an  act  of  Congress,  or  a  treaty  is  in  controversy, 
but  also  when  there  is  a  question  concerning  the  existence 
or  exercise  of  any  power,  right,  or  duty  arising  under  the 
government  of  the  United  States.  Thus,  the  right  of  a 
citizen  unhindered  to  inform  Federal  officers  of  the  vio- 
lation of  Federal  revenue  laws  is  a  right  arising  under 
the  Constitution  and  laws  of  the  United  States,  although 
there  is  nothing  in  the  Constitution  or  any  acts  of  Con- 
gress directly  bearing  upon  this  (4). 

On  the  other  hand  a  case  does  not  involve  a  Federal 
question,  so  as  to  give  the  Federal  courts  jurisdiction, 
merely  because  rights  claimed  in  the  case  are  based  upon 
a  Federal  law,  provided  there  be  no  controversy  as  to  the 
operation  or  effect  of  this  law.  For  instance,  the  title 
to  land  may  be  derived  from  a  United  States  grant.  If, 
in  a  suit,  the  validity  of  some  subsequent  deed  of  this 
land  is  in  issue,  there  is  no  Federal  question,  although 
the  original  Federal  grant  is  part  of  the  alleged  title  of 
both  parties.  If  the  Federal  grant  itself  was  at  issue 
there  would  be  a  Federal  question  (5). 

Corporations  created  by  the  United  States  to  aid  in  its 
governmental  functions,  like  banks  or  railways,  may  sue 


(4)  In  re  Quarles,  158  U.  S.,  532. 

(5)  Blackburn  v.  Portland  Mining  Co.,  175  U.  S.,  571, 


358  CONSTITUTIONAL  LAW 

or  be  sued  in  the  Federal  courts,  even  though  the  ques- 
tion in  controversy  does  not  concern  the  operation  or 
effect  of  their  corporate  charters  (6).  Perhaps  the  best 
reason  for  this  is  that  the  exercise  of  Federal  govern 
mental  functions,  even  by  a  private  corporation,  is  neces- 
sarily the  exercise  of  a  power  under  the  United  States 
government,  whatever  the  precise  question  at  issue  con- 
cerning it. 

§  360.  Habeas  corpus  proceedings.  The  Federal 
courts  are  given  by  statute  the  right  to  grant  writs  of 
habeas  corpus,  within  their  respective  jurisdictions,  tQ 
inquire  why  any  person  is  restrained  of  his  liberty  (7). 
** Within  their  jurisdictions"  means  that  the  writ  can  be 
used  by  the  Federal  courts  only  where  the  restraint 
is  connected  with  some  subject  matter  to  which"  the  juris- 
diction of  the  Federal  courts  extends.  Thus,  a  father 
may  not  secure  from  a  Federal  court  a  writ  of  habeas 
corpus  to  restore  to  him  his  children,  detained  by  citi- 
zens of  his  own  state.  The  relation  of  father  and  child 
is  governed  by  state  and  not  by  Federal  law  and  so  the 
application  must  be  made  to  the  state  courts  (8). 

On  the  other  hand,  where  a  Federal  marshal  was  in 
the  custody  of  state  authorities,  charged  with  homicide 
while  acting  in  defence  of  a  Federal  judge,  the  Federal 
courts  released  the  marshal  absolutely  from  state  custody 
on  the  ground  that  what  the  marshal  had  done  was  in 
furtherance  of  a  duty  owed  to  the  United  States.    The 


(6)  Pacific  Railroad  Removal  Cases,  115  U.  S.,  1. 

(7)  U.  S.  R.  S..  §§751-66. 

(8)  In  re  Burrus,  136  U.  S.,  586. 


THE  FEDERAL  GOVERNMENT        359 

Federal  courts,  however,  are  reluctant  to  interfere  thus 
summarily  with  the  administration  of  justice  in  the  state 
courts,  and  state  prisoners  will  not  be  released  before 
trial  by  the  Federal  courts  unless  it  is  perfectly  clear 
that  important  constitutional  rights  are  being  violated 
or  that  the  prisoner's  act  was  justifiably  done  on  behalf 
of  the  United  States  or  some  foreign  nation  (9). 

§  361.  Suits  between  states.  Without  its  consent,  a 
sovereign  state  can  not  be  sued,  but  must  be  proceeded 
against  by  another  state,  if  at  all,  through  diplomatic 
or  military  channels.  The  powers  of  diplomacy  and  war 
being  taken  from  the  American  states  by  the  Constitu- 
tion, the  settlement  of  international  difficulties  between 
them  is  consequently  relegated  to  the  Federal  courts. 
The  jurisdiction  has  been  upheld  in  a  considerable  vari- 
ety of  cases,  and  apparently  extends  to  all  matters  that 
would  be  proper  subjects  for  an  international  tribunal. 
Among  them  may  be  mentioned  boundary  disputes  (10) ; 
the  controversy  over  the  right  of  Illinois  to  empty  the 
Chicago  drainage  canal  into  Missouri  waters  (11) ;  the 
dispute  between  Kansas  and  Colorado  regarding  their 
respective  rights  to  use  the  Arkansas  river  for  irriga- 
tion (12) ;  the  suit  by  South  Dakota  against  North  Caro- 
lina upon  the  latter 's  bonds  (13) ;  and  the  recent  bill 
brought  by  Virginia  against  West  Virginia  to  compel  the 


(9)  Rogers  v.  Peck,  199  U.  S.,  425;  U.  S.  R.  S.,  §  753. 

(10)  Rhode  Island  v.  Massachusetts,  12  Pet.,  657. 

(11)  Missouri  v.  Illinois,  180  U.  S.,  208. 

(12)  Kansas  v.  Colorado,  185  U.  S.,  125. 

(13)  South  Dakota  v.  North  Carolina,  192  U.  S.,  286. 


360  CONSTITUTIONAL  LAW 

assumption  of  a  fair  share  of  Virginia's  debt  before  the 
state  was  divided  (14). 

§362.    Suits  between  states  and  the  United  States.  The 

judiciary  article  expressly  provides  for  suits  between 
states,  but  there  is  no  express  provision  for  suits  be- 
tween states  and  the  United  States.  General  jurisdic- 
tion is  given,  however,  of  the  cases  to  which  the  United 
States  is  a  party,  and  this  is  held  to  include  cases  where 
the  United  States  is  a  plaintiff  and  a  state  an  unwilling 
defendant  (15).  The  United  States,  being  a  paramount 
sovereignty,  is  not  subject  to  the  general  rule  of  public 
law  forbidding  one  sovereignty  to  sue  another  without 
the  latter 's  consent  (§  368,  below).  A  state  as  a  subordi- 
nate sovereignty  may  not  sue  the  United  States  without 
the  latter 's  consent  (16). 

§  363.  Diverse  citizenship.  The  jurisdiction  of  the 
Federal  courts  extends  to  suits  between  citizens  of  dif- 
ferent states,  and  between  citizens  and  aliens.  It  will 
be  noticed  that  three  considerable  classes  of  persons 
are  wholly  omitted  from  this  enumeration:  (1)  Citizens 
of  the  District  of  Columbia.  (2)  Citizens  of  the  territories 
of  the  United  States.  (3)  All  corporations.  As  regards 
classes  (1)  and  (2)  it  was  early  held  that  they  were  out- 
side of  this  constitutional  provision.  A  citizen  of  Kentucky 
who  wishes  to  sue  an  Ohio  defendant  may  do  so  in  the 
Ohio  Federal  courts  in  order  to  escape  local  prejudice; 
but  a  citizen  of  Washington,  D.  C,  or  of  Alaska,  must 


(14)  Virginia  v.  West  Virginia,  206  U.  S.,  290. 

(15)  United  States  v.  Texas,  143  U.  S.,  621. 

(16)  Kansas  v.  United  States,  204  U.  S.,  331. 


THE  FEDERAL  GOVERNMENT        361 

take  what  the  local  state  courts  will  give  him  when  he 
sues  in  Ohio  or  other  states. 

Class  (3)  has  had  a  different  fate.  There  were  few  cor- 
porations when  the  Constitution  was  adopted  and  prob- 
ably they  were  overlooked  or  regarded  as  unimportant 
when  the  jurisdictional  section  was  drafted.  When  cases 
with  corporations  as  plaintiffs  or  defendants  became 
more  frequent,  the  Supreme  Court  first  held  that,  if  all 
the  stockholders  of  a  corporation  were  citizens  of  the 
state  where  it  was  incorporated,  the  suit  could  be  treated 
as  virtually  a  suit  by  the  citizens  of  that  state,  and  if  the 
other  party  was  a  citizen  of  another  state,  the  necessary 
diverse  citizenship  existed  to  give  the  Federal  courts 
jurisdiction.  Later  the  court  decided  that  all  of  the  stock- 
holders of  a  corporation  would  be  conclusively  presumed 
to  be  citizens  of  the  state  in  which  it  was  incorporated, 
for  the  purposes  of  Federal  jurisdiction  (17).  This  vir- 
tually makes  a  corporation  a  citizen  of  the  state  of  its 
creation,  though  this  is  so  for  the  purposes  of  Federal 
jurisdiction  only. 

§  364.  Law  applied  by  Federal  courts:  No  Federal 
common  law.  All  transactions  that  occur  in  the  United 
States,  where  not  governed  by  some  written  law  (consti- 
tution, statute,  or  treaty),  are  governed  by  the  unwritten 
common  law.  This  is  not  precisely  alike  in  any  two  of 
the  states,  and  in  a  few  states  it  is  quite  divergent  from 
the  ordinary  type,  due  to  its  basis  upon  a  different  sys- 
tem of  law  (as  in  Louisiana),  or  to  local  peculiarities  of 
climate  or  custom  (as  in  arid  states).    When  the  Con- 


(17)     Ohio  &  Mississippi  Railroad  Co.  y.  Wheeler.  1  Black,  286. 


362  CONSTITUTIONAL  LAW 

stitution  was  adopted,  each  of  the  original  states  had  its 
own  body  of  common  law  governing  its  people  in  all 
particulars  not  covered  by  written  law.  It  might  have 
been  held  that  so  much  of  this  common  law  as  concerned 
subjects  delegated  to  the  United  States  by  the  Consti- 
tution became,  upon  the  adoption  of  the  Constitution, 
Federal  common  law,  and  the  rest  remained  state  law. 
It  was  early  said,  however,  that  this  was  not  so ;  and  the 
Federal  courts  have  consistently  held  that  the  common 
law  of  each  state,  even  upon  national  subjects,  is  state 
law  until  changed  by  an  act  of  Congress.  Thus,  although 
Congress  alone  can  by  statute  regulate  interstate  com- 
merce rates,  yet,  until  Congress  acts,  the  common  law  of 
each  state  respecting  interstate  rates  is  enforced,  requir- 
ing, for  instance,  that  they  be  not  unreasonable  nor  dis- 
criminatory (18).  For  similar  reasons,  there  can  be  no 
common  law  crimes  against  the  United  States.  They 
exist  against  state  laws  only,  while  Congress  must  enact 
statutes  to  create  Federal  crimes  (19). 

§365.  Same:  Questions  of  local  common  law.  Al- 
though there  is  no  Federal  common  law,  the  Federal 
courts  must  frequently  interpret  and  enforce  state  com- 
mon law.  A  suit  between  citizens  of  New  York  and  Indi- 
ana regarding  land  in  New  York  can  be  brought  in  the 
Federal  courts  on  account  of  the  diverse  citizenship  of 
the  parties,  but  the  only  law  involved  is  the  local  land 
law  of  New  York.  If  similar  questions  have  been  previ- 
ously decided  by  the  New  York  courts,  establishing  the 


(18)  Waetern  Union  Co.  v.  Call  Publishing  Co.,  181  U.  S.,  92. 

(19)  United  States  v.  Hudson,  7  Cranch  32. 


THE  FEDERAL  GOVERNMENT  36^ 

New  York  law  upon  the  point  at  issue,  the  Federal  courts 
in  New  York  will  follow  the  decision  of  the  New  York 
courts,  whether  they  think  them  right  or  not.  It  is  enough 
that  they  appear  to  establish  the  law  in  New  York  (20). 
The  same  will  be  done  with  respect  to  any  legal  matter 
that  is  purely  local  to  New  York. 

§  366.  Same:  Questions  of  general  or  commercial  com- 
mon law.  Suppose  instead  of  being  a  question  of  land 
law  it  is  one  of  commercial  paper.  The  New  York  courts, 
for  instance,  have  decided  that  the  purchaser  of  a  prom- 
issory note  under  certain  circumstances  cannot  enforce 
it,  although  in  most  places  outside  of  New  York  it  would 
be  enforceable.  If  an  Indiana  citizen  sues  in  the  Federal 
courts  of  New  York  in  such  a  case,  the  Federal  courts 
will  refuse  to  follow  the  decisions  of  the  New  York 
courts  if  they  think  the  New  York  view  is  wrong  and 
opposed  to  the  rules  of  commercial  law  generally  (21). 
Assuming  that  the  state  and  Federal  courts  in  New  York 
will  remain  unconvinced  by  each  other,  it  results  that 
there  are  virtually  two  different  laws  in  New  York  upon 
this  point — one  law  administered  between  New  York  citi- 
zens in  the  state  courts,  and  the  other  administered  be- 
tween New  York  citizens  and  outsiders  in  the  Federal 
courts.  The  situation  is  unfortunate,  and  in  addition  it 
is  difficult  to  know  what  questions  will  be  considered 
those  of  general  law  and  which  of  local  law.  Commercial 
paper  and  insurance  contracts,  contracts  exempting  car- 
riers from  negligence,  and  the  operation  of  the  fellow* 


(20)  Suydam  v.  Williamson,  24  How.,  427. 

(21)  Swift  V.  Tyson,  16  Pet,  1. 


364  CONSTITUTIONAL  LAW 

servant  rule  in  agency  have  been  held  to  be  matters  of 
general  law.  Land  laws,  Sunday  laws,  and  questions  of 
local  public  policy  are  held  to  be  matters  of  local  law. 

§  367.  Same:  State  statutes.  Every  state  statute  is 
treated  as  a  local  law,  and  the  Federal  courts  will  follow 
the  decisions  of  the  state  courts  in  construing  state 
statutes,  no  matter  how  unusual  the  construction 
maybe  (22). 

If  conflicting  constructions  of  a  statute  have  been  made 
by  a  state  court  the  Federal  courts  will  follow  the  latest 
decision  of  the  highest  state  court,  subject  to  the  qualifi- 
cation mentioned  below. 

Suppose  a  state  statute  purports  to  authorize  a  state 
to  issue  bonds.  The  bonds  are  issued  and  in  a  suit  in  the 
state  court  the  statute  is  held  valid  and  the  bonds  de- 
clared good.  Other  bonds  are  bought  upon  the  faith  of 
this  decision,  but  later  the  state  court  reverses  its  former 
decision,  holding  the  statute  invalid  and  the  bonds  bad. 
This  involves  no  Federal  question,  as  it  depends  wholly 
upon  the  construction  of  a  state  statute,  so  citizens  of  the 
same  state  as  the  city  issuing  the  bonds  are  remediless. 
Citizens  of  other  states,  however,  may  sue  the  city  in 
the  Federal  courts  on  the  ground  of  diverse  citizenship, 
and,  with  respect  to  contract  or  property  rights  acquired 
on  the  faith  of  the  first  state  decision,  the  Federal  courts 
will  follow  the  first  decision  and  hold  the  statute  valid. 
As  to  the  contracts  made  after  the  second  state  decision, 
the  Federal  courts  will  follow  the  second  decision  (23). 


(22)  Leffingwell  v.  Warren,  2  Black,  599. 

(23)  Douglass  v.  Pike  County.  101  U.  S.  677. 


THE  FEDERAL  GOVERNltlENT  365 

This  is  the  only  exception  to  the  rule  that  the  Federal 
courts  will  follow  the  interpretation  of  state  statutes 
made  by  state  courts. 

Section  2.    Suits  Against  States,    Eleventh  Amend- 
ment. 

§  368.  Political  sovereignty  not  accountable  to  in- 
dividuals. According  to  the  rules  of  public  law  it  is  or.^i 
of  the  attributes  of  sovereignty  not  to  be  accountable  tc 
individuals  against  the  sovereign's  will.  The  rule  has 
sometimes  been  expressed  in  the  maxim  ""jThe  king 
can  do  no  wrong. ' '  Literally,  of  course,  this  is  far  from 
true,  but,  inasmuch  as  the  king  cannot  be  sued  in  his  own 
courts  without  his  consent,  the  real  truth  is  that  he  cannot 
be  made  responsible  for  his  wrong-doing.  Whether  the 
sovereign  is  an  individual  ruler,  or  democracy  itself,  the 
rule  is  the  same.  Also,  by  rules  of  public  international 
law  a  sovereign  may  not  be  sued  against  his  consent  in 
the  courts  of  any  other  country  than  his  own,  unless 
some  statute  there  in  force  applicable  to  the  case  permits 
it.  A  somewhat  amusing  illustration  of  this  occurred  a 
few  years  ago  in  England.  The  Sultan  of  Johore,  a  small 
independent  state  in  the  Malay  Peninsula,  with  which 
Great  Britain  was  in  alliance,  came  to  England  and  took 
up  a  residence  there,  under  the  assumed  name  of  Baker. 
He  promised  to  marry  a  woman  living  in  England,  and 
later  was  sued  by  her  in  the  English  courts  for  breach 
of  promise  of  marriage.  He  denied  the  jurisdiction  of 
the  English  courts,  and  it  was  held  that  as  lawful  sover- 
eign of  the  State  of  Johore  he  was  entitled  to  immunity 
from  suit  in  the  courts  of  other  countries,  unless  he 

Vol.  Xn— 2  5 


366  CONSTITUTIONAL  LAW 

chose  to  waive  this  immunity,  or  it  was  taken  away  from 
him  by  express  statute  where  he  was  sued  (24). 

§369.  Chisholm  v.  Georgia.  Eleventh  Amendment. 
One  of  the  clauses  of  the  judiciary  article  provides  that 
the  judicial  power  of  the  United  States  shall  extend  **to 
controversies  between  a  state  and  citizens  of  another 
state. '^  In  1792  a  creditor  of  Georgia  living  in  another 
state  brought  suit  in  the  Supreme  Court  against  Georgia 
for  non-payment  of  the  debt.  The  state  argued  that  the 
Constitution  was  to  be  interpreted  in  the  light  of  well- 
known  rules  of  public  law,  and  that  therefore  this  clause 
applied  only  to  cases  where  a  state  should  sue  a  citizen 
of  another  state,  and  not  to  cases  where  a  state  itself  was 
defendant.  The  court  decided  by  a  vote  of  four  to  one 
that  the  Constitution  covered  the  case  of  a  suit  against 
a  state  by  a  citizen  of  another  state  (25). 

At  the  first  meeting  of  Congress,  thereafter,  the  Elev- 
enth Amendment  to  the  Constitution  was  proposed  and  a 
few  years  later  became  a  part  of  the  Constitution  in  the 
following  language:  *'The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  state,  or  by  citizens 
or  subjects  of  any  foreign  state." 

§  370.  Repudiatian  of  state  debts.  The  Eleventh 
Amendment  has  enabled  a  number  of  American  states 
to  repudiate  their  debts,  in  whole  or  in  part,  at  various 
periods  in  our  history.    During  the  hard  times  after  the 


(24)  Mighell  v.  Sultan  of  Johore,  (1894)  1  Q.  B.  149. 

(25)  Chisholm  v.  Georgia,  2  Dall.,  419. 


THE  FEDERAL  GOVERNMENT        367 

panic  of  1837  nine  or  ten  middle,  western,  and  southern 
states  defaulted  in  state  debts  incurred  largely  for  in- 
ternal improvements.  After  the  Civil  war  there  was  an- 
other period  of  repudiation.  Most  of  the  southern  states, 
with  much  justification,  refused  to  pay  debts  corruptly 
or  extravagantly  incurred  by  their  reconstruction  gov- 
ernments, and  one  or  two  western  states  repudiated  debts 
during  the  '' Granger"  excitement  of  the  1870 's.  Louisi- 
ana has  repudiated  some  part  of  its  state  debt  at  four 
different  periods. 

Even  when  a  state  has  expressly  consented  to  be  sued 
and  suit  has  been  begun  against  it  and  is  in  process  of 
decision,  the  state  may  at  any  time  withdraw  its  consent 
to  further  proceedings,  and  the  Eleventh  Ajnendment  at 
once  applies  to  shield  the  state  (26). 

§  371.  Suits  between  states  upon  bond  debts.  Deci- 
sions interpreting  the  Eleventh  Amendment  have  been 
numerous.  It  was  early  held  that  this  amendment  did 
not  affect  suits  between  states  themselves,  which  the 
Federal  courts  are  authorized  to  entertain  by  another 
clause  of  the  judiciary  article.  When  Louisiana  repudi- 
ated her  state  debt  for  the  last  time,  the  legislature  of 
New  Hampshire  passed  an  act  permitting  its  citizens  to 
assign  their  claims  against  Louisiana  to  the  state,  and 
directed  the  attorney-general  to  sue  Louisiana  in  the 
name  of  New  Hampshire  upon  such  claims.  The  assign- 
ing creditors  were  to  pay  the  costs  of  the  suit,  and  to 
have  the  net  proceeds  of  any  recovery.  Suit  was  begun 
against  Louisiana  under  this  act  by  New  Hampshire,  but 


(26)     Beers  v.  Arkansas,  20  How.,  527. 


368  CONSTITUTIONAL  LAW 

was  dismissed  by  the  Supreme  Com't  on  the  gromid  that 
the  real  parties  in  interest  were  citizens  of  the  state,  not 
the  state  itself,  and  therefore  such  suits  fell  within  the 
substance  of  the  Eleventh  Amendment  (27). 

Recently  the  owners  of  some  repudiated  North  Carolina 
bonds  donated  them  outright  to  the  state  of  South  Da- 
kota. South  Dakota  accepted  the  bonds  and  at  once  be- 
gnn  suit  against  North  Carolina  upon  them  in  the 
Supreme  Court.  Its  action  was  upheld  as  not  within  the 
prohibition  of  the  Eleventh  Amendment,  inasmuch  as 
South  Dakota  was  the  only  party  having  an  interest  in 
the  subject  matter  of  the  suit,  so  that  this  action  was  not 
a  mere  cover  for  other  interested  individuals,  as  was  true 
in  the  New  Hampshire  case  (28).  These  particular  bonds 
were  secured  by  mortgage  on  some  railroad  stock,  so 
that  the  judgment  could  be  collected  merely  by  selling 
the  stock,  without  the  necessity  of  a  personal  judgment 
as^ainst  the  state.  The  court  admitted  that  property  held 
by  a  state  for  public  governmeutal  purposes  could  not 
be  seized  to  pay  a  judgment,  and  that  a  court  could  not 
compel  a  state  to  levy  taxes  to  pay  a  judgment.  This 
procedure,  therefore,  is  not  likely  to  be  effectively  used 
against  a  defaulting  state,  save  in  the  exceptional  case 
where  some  security  has  been  given  that  may  be  sold  to 
satisfy  a  judgment. 

See  further,  respecting  suits  brought  against  a  state 
by  another  state  or  the  United  States,  §§  361,  362,  above. 

§  372.  Suits  against  municipal  corporations.  Set-off 
against  state.  The  Eleventh  Amendment  applies  only  to 
suits  brought  against  the  state  itself,  or  where  the  relief 


(27)  New  Hampshire  v.  Louisiana,  108  U.  S.,  76, 

(28)  South  Dakota  v.  North  Carolina,  192  U.  S.^  286. 


THE  FEDERAL  GOVERNMENT        369 

really  eought  is  against  the  state  sovereignty.  It  does  not 
apply  to  suits  brought  against  corporations,  public  or 
private,  created  by  the  state,  nor  to  municipal  subdi- 
visions of  the  state,  although  created  by  the  latter  for 
governmental  purposes  (29).  It  is  the  state  sovereignty 
itself  that  is  protected,  not  any  lesser  creations  of  the 
state. 

Nor  does  the  prohibition  cover  the  case  of  a  set-off 
which  the  state  has  previously  created  when  used  as  a 
defense  in  a  suit  brought  by  the  state  itself.  Virginia 
issued  certain  bonds,  the  interest  coupons  of  which  it 
agreed  should  be  receivable  for  all  taxes  and  other  debts 
due  the  state.  Virginia  repudiated  the  bonds  and  re- 
fused to  receive  the  interest  coupons  for  taxes.  Persons 
who  tendered  the  coupons  for  taxes  were  sued  by  the 
state  for  the  amount  of  their  taxes,  and  their  property 
was  seized  in  satisfaction  thereof.  It  was  held  that  Vir- 
ginia had  contracted  to  permit  these  interest  coupons  to 
be  used  as  a  set-off  against  taxes  due  the  state,  and  that 
making  this  defense  against  the  state 's  attempt  to  collect 
taxes  was  not  a  suit  against  the  state,  but  merely  an 
gnswer  to  the  state's  suit  against  individuals  (30). 

§  373.    Suits  against  state  by  its  own  citizens.    The 

Eleventh  Amendment  in  terms  forbids  only  suits  brought 
against  a  state  by  citizens  of  another  state,  or  by  aliens. 
It  does  not  include  suits  brought  against  a  state  by  its 
own  citizens.    The  latter  suits  have,  however,  been  held 


(29)  Lincoln  Co.  v.  Luning,  133  U.  S.,  52». 

(30)  Virginia  Coupon  Cases,  114  U.  S.,  269. 


370  CONSTITUTIONAL  LAW 

to  be  forbidden  by  the  rule  of  public  law  referred  to  in 
§  368,  above  (31). 

§  374.  Suits  against  state  officers:  (a)  For  illegal  offi- 
cial act.  When  the  state  is  named  as  a  defendant  in  an 
action  brought  by  an  individual  to  obtain  some  relief 
there  is  of  course  no  doubt  that  it  is  a  suit  against  a  state. 
Suppose,  however,  that  the  suit  is  brought  against  some 
state  officer,  either  (a),  to  obtain  redress  for  some  act 
done  for  the  state  in  his  official  capacity;  or  (b),  to  pre- 
vent his  doing  some  official  act  for  the  state;  or  (c),  to 
compel  the  doing  of  some  official  act  for  the  state.  Are 
any  of  these  suits  against  a  state  within  the  meaning  of 
the  Eleventh  Amendment? 

As  regards  the  first  of  these  classes  the  matter  is  clear. 
For  instance,  a  state,  by  a  law  invalid  under  the  United 
States  Constitution,  purports  to  authorize  its  officers  on 
its  behalf,  to  seize  certain  property  owned  by  a  United 
States  national  bank.  Acting  under  this  authority,  the 
officers  seize  the  property,  and  are  sued  as  individual 
trespassers  by  the  bank.  On  the  one  side  it  is  argued  that 
they  have  acted  only  for  the  state,  which  can  act  only  by 
human  agents,  and  that  therefore  the  suit  is  really  against 
the  state.  On  the  other  side,  it  is  urged  that  under  our 
law  not  only  the  person  who  authorizes  a  wrong  is  liable, 
but  also  the  agent  who  carries  out  the  authority  and  actu- 
ally commits  the  wrong;  and  that  in  this  case  the  suit 
against  the  officers  is  for  the  wrong  committed  by  them 
personally  in  executing  an  invalid  authority.    The  officer, 


(31)     HauB  ▼.  Louisiana,  134  U.  S.,  1 


THE  FEDERAL  GOVERNMENT        371 

being  sued,  is  liable  as  an  individual  unless  he  can  show 
that  his  act  is  protected  by  a  valid  governmental  author- 
ity. Being  able  to  show  only  an  invalid  (unconstitu- 
tional) authority,  he  cannot  justify  his  act  and  hence  is 
personally  liable.  This  reasoning  prevailed  in  an  early 
case  upon  the  facts  stated,  and  it  has  been  universally 
followed  since  (32). 

§  375.    Same:     (b)     To  prevent  illegal  official  act.  Of 

course  if  a  state  officer  can  be  personally  sued  for  wrong- 
fully taking  private  property,  even  though  he  purports 
to  act  for  the  state,  he  can  clearly  be  prevented  in  ad- 
vance from  doing  the  illegal  act,  if  it  is  the  kind  of  an  act 
that  courts  would  prevent  if  it  were  threatened  by  a  pri- 
vate individual.  This  is  true  even  where  the  unlawful  act 
threatened  by  state  officers  is  not  a  physical  interference 
with  the  person  or  property  of  an  individual. 

The  plaintiff  had  acquired  the  title  to  certain  land 
formerly  belonging  to  the  state  of  Oregon.  A  dispute 
arose  between  the  plaintiff  and  the  state  regarding  the 
land,  and  a  statute  was  passed  requiring  the  state  land 
commission  to  cancel  plaintiff's  title  and  resell  the  land. 
The  plaintiff  obtained  an  injunction  against  the  doing 
of  this  by  the  land  commissioners,  the  Supreme  Court 
holding  that  his  suit  was  against  them  as  individuals  to 
prevent  the  perpetration  of  a  wrong  that  would  cloud  the 
plaintiff's  title  to  his  land.  If  the  state  did  not  really 
own  the  land  it  could  not  lawfully  authorize  its  officers 
to  sell  it,  and  without  lawful  authority  their  acts  could 


(32)     Osborne  v.  United  States  Bank,  9  Wheaton,  738,  842-4. 


372  CONSTITUTIONAL  LAW 

be    prevented    just    like    the    wrongful    acts    of    any 
individuals  (33). 
§  376.    Same:  (c)     To  compel  official  act.    Where  the 

obligation  of  the  state,  however,  requires  affirmative  ac- 
tion on  the  part  of  an  official  acting  in  its  behalf,  a  suit 
to  compel  such  action  cannot  be  maintained  under  the 
Eleventh  Amendment. 

For  instance,  Louisiana  contracted  with  its  creditors 
to  apply  the  revenue  derived  from  a  certain  tax  to  dis- 
charge their  claims.  Later  the  state  repudiated  this  and 
its  creditors  sued  to  compel  the  state  officers  to  apply  the 
funds  already  collected  to  the  payment  of  the  agreed 
debts.  It  was  argued  for  the  creditors  that  this  was 
really  a  suit  against  the  officers  individually  to  prevent  a 
wrongful  omission  of  their  duties,  for  the  second  state 
law,  being  an  impairment  of  the  state's  contract  with  its 
creditors,  was  invalid  and  ought  to  be  disregarded  by  the 
state  officers.  The  Supreme  Court  denied  this,  pointing 
out  that  the  relief  was  really  against  the  state  itself, 
which  owed  the  money,  and  that  the  state  officers  as  indi- 
viduals, apart  from  their  official  character,  owed  no  duties 
to  the  creditors  and  hence  could  not  be  sued  as  individ- 
uals. *'The  officers  owe  duty  to  the  state  alone,  and  have 
no  contract  relations  with  the  bondholders.  They  can 
only  act  as  the  state  directs  them  to  act,  and  hold  as  the 
state  allows  them  to  hold.  .  .  .  They  can  be  moved 
through  the  state,  but  not  the  state  through  them"  (34). 

§  377.    General  principle  involved.     Generally  speak- 


(33)  Pennoyer  v.  McConnaughy,  140  U.  S.,  1. 

(34)  Louisiana  v.  Jumel,  101  U.  S.,  711. 


THE  FEDERAL  GOVERNMENT        373 

ing,  the  principle  to  be  gathered  from  the  foregoing  de- 
cisions and  others  of  like  tenor  appears  to  be  this:  If 
state  ofificers,  claiming  to  act  under  the  authority  of  the 
state  are  doing  or  threatening  acts  which  if  done  by  pri- 
vate persons  would  be  actionable  wrongs,  the  officers  may 
be  made  individually  liable  if  the  state  authority  under 
which  they  act  is  really  invalid.  On  the  other  hand,  if 
state  officers  owe  no  duties  as  individuals  which  they  are 
violating  by  action  or  inaction,  a  suit  to  compel  the  dis- 
charge of  purely  official  duties  owed  on  behalf  of  the 
state,  is  a  suit  against  the  state. 

§  378.  Enjoining  suit  on  behalf  of  state.  One  class  of 
cases  is  not  readily  explained  by  the  application  of  the 
above  rule,  and  has  occasioned  doubt  and  uncertainty  not 
yet  dispelled.  These  are  cases  where  a  state  has  passed 
a  law  alleged  to  be  invalid,  and  has  by  statute  authorized 
certain  state  officials  to  enforce  the  law  in  the  courts  or 
tribunals  of  the  state. 

The  state  of  Minnesota,  through  orders  of  its  railway 
commission  and  by  statutes,  required  the  railway  com- 
panies in  the  state  to  establish  certain  schedules  of  rates. 
The  Northern  Pacific  Kailway  asked  the  Federal  circuit 
court  to  enjoin  the  railway  commission  from  enforcing 
these  rates  as  too  low  to  permit  a  fair  profit,  and  also 
asked  that  Young,  the  state  attorney-general,  be  re- 
strained from  proceeding  against  the  company  by  man- 
damus, or  by  criminal  proceedings  to  enforce  the  penal- 
ties of  the  statute.  A  temporary  injunction  was  issued 
against  the  new  rates  until  a  judicial  investigation  had 
been  made,  and  Young  was  also  enjoined  from  taking  any 


374  CONSTITUTIONAL  LAW 

action  in  the  matter  meanwliile.  He  disobeyed  the  injunc- 
tion and  asked  for  a  mandamus  in  the  state  courts  to  put 
into  effect  the  controverted  rates.  The  Federal  circuit 
court  then  imprisoned  Young  for  contempt  in  disobeying 
its  orders,  and  the  Supreme  Court  adjudged  the  imprison- 
ment legal.  It  was  urged  that  it  was  a  suit  against  the 
state  because  what  the  Federal  court  had  enjoined  was 
not  such  an  action  as  Young  might  take  as  an  individual, 
but  only  such  action  as  he  might  take  in  behalf  of  the 
state  of  Minnesota.    The  court  said: 

**The  act  to  be  enforced  is  alleged  to  be  unconstitu- 
tional, and  if  it  be  so,  the  use  of  the  name  of  the  state  to 
enforce  an  unconstitutional  act  to  the  injury  of  com- 
plainants is  a  proceeding  without  the  authority  of  and 
one  which  does  not  affect  the  state  in  its  sovereign  or  gov- 
ernmental capacity.  It  is  simply  an  illegal  act  upon  the 
part  of  the  state  to  enforce  a  legislative  enactment  which 
is  void  because  unconstitutional.  If  the  act  which  the 
state  attorney-general  seeks  to  enforce  be  a  violation  of 
the  Federal  Constitution,  the  ofl&cer  in  proceeding  under 
such  enactment  comes  into  conflict  with  the  superior  au- 
thority of  that  Constitution,  and  he  is  in  that  case 
stripped  of  his  official  or  representative  character  and  is 
subjected  in  his  person  to  the  consequence  of  his  indi- 
vidual conduct"  (35). 

Mr.  Justice  Harlan  dissented  on  the  ground  that  where 
the  very  question  at  issue  was  the  constitutionality  of  a 
statute  the  attorney-general  of  a  state  could  not  be  an 
individual  wrongdoer  in  bringing  suit  on  behalf  of  the 


(35)     Ex  parte  Young,  209  U.  S.,  123,  159-60. 


THE  FEDERAL  GOVERNMENT  375 

state  in  its  own  courts  to  test  the  statute.  If  the  decision 
of  the  state  court  should  be  wrong  in  the  matter  it  could 
be  finally  corrected  by  carrying  the  case  to  the  United 
States  Supreme  Court.  If  the  attorney-general  was  do- 
ing no  individual  wrong  in  bringing  suit  on  behalf  of  his 
state,  then  an  attempt  to  control  his  purely  official  acts 
on  behalf  of  the  state  was  really  an  effort  to  prevent  the 
state  from  acting,  that  is,  to  prevent  the  state  from  secur- 
ing a  determination  of  the  validity  of  its  own  statutes  in 
its  own  courts  in  the  first  instance. 


APPENDIX  A 

CONSTITUTION  OF  THE  UNITED  STATES. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  or- 
dain and  establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE  L 
Section  1. 

All  legislative  powers  herein  gi-anted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

Section  2. 

§  1.  The  House  of  Representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several  states, 
and  the  electors  in  each  state  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  state  legislature. 

§  2.  No  person  shall  be  a  representative  who  shall  not  have  at- 
tained the  age  of  twenty-five  years,  and  been  seven  years  a  citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an  in- 
habitant of  that  state  in  which  he  shall  be  chosen. 

§  3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined  by 
adding  to  the  whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians  not  taxed, 
three-fifths  of  all  other  persons.  The  actual  enumeration  shall  be 
made  within  three  years  after  the  first  meeting  of  the  Congress  of 
the  United  States,  and'  within  evei'y  subsequent  term  of  ten  years, 
in  such  manner  as  they  shall  by  law  direct.  The  number  of  repre- 
sentatives shall  not  exceed  one  for  every  thirty  thousand,  but  each 
state  shall  have  at  least  one  representative;  and  until  such  enumera- 

376 


CONSTITUTIONAL  LAW  377 

tion  shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled 
to  choose  thi-ee,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North 
Carolina  five,  South  Carolina  five,  and  Georgia  three. 

§  4.  When  vacancies  happen  in  the  representation  from  any 
state,  the  executive  authority  thereof  shall  issue  writs  of  election 
to  fill  such  vacancies. 

§  5.  The  House  of  Representatives  shall  choose  their  speaker 
and  other  officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  3. 

§  1.  The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state,  chosen  by  the  legislature  thereof,  for  six 
years,  and  each  senator  shall  have  one  vote. 

§  2.  Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year;  of  the  second  class, 
at  the  expiration  of  the  fourth  year,  and  of  the  third  class,  at  the 
expiration  of  the  sixth  year,  so  that  one-third  may  be  chosen  every 
second  year,  and  if  vacancies  happen  by  resignation  or  otherwise 
during  the  recess  of  the  legislature  of  any  state,  the  executive  there- 
of may  make  temporary  appointments  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies. 

§  3.  No  person  shall  be  a  senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  state  for  which  he  shall  be  chosen. 

§  4.  The  Vice-President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

§  5.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore  in  the  absence  of  the  Vice-President,  or  when 
he  shall  exercise  the  office  of  President  of  the  United  States. 

§  6.  The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose  they  shall  be  on  oath  or  af- 
firmation. When  the  President  of  the  United  States  is  tried  the 
Chief  Justice  shall  preside;  and  no  person  shall  be  convicted  with- 
out the  concurrence  of  two-thirds  of  the  membei's  present. 

§  7.  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office  and  disqualification  to  hold  and  enjoy 
any  office  ^£,  hcz^gL,  trust  or  profit  under  the  United  States;  but 


378  APPENDIX 

<he  party  convicted  shall,  nevertheless,  be  liable  and  subject  to  in- 
dictment,  trial,  judgTuent,  and  punishment,  according  to  law. 

Section  4. 

§  1.  The  times,  places,  and  manner  of  holding  elections  for  sen- 
ators and  representatives  shall  be  prescribed  in  each  state  by  the 
lejjislature  thereof;  bat  the  Congress  may  at  any  time  by  law  make 
or  alter  such  regulationi*,  except  as  to  the  places  of  choosing  senators. 

§  2.  The  Congress  &hall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December,  un- 
less they  shall  by  law  appoint  a  different  day. 

Section  5. 

§  1.  Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the  attendance 
of  absent  members,  in  such  manner,  and  under  such  penalties  as 
each  house  ma}'  provide. 

§  2.  Each  house  may  determine  the  rules  of  its  proceedings,  pun- 
ish its  members  for  disorderly  behavior,  and  -with  the  concurrence 
of  two-thirds  expel  a  member. 

§  3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts  as  may 
in  their  judgment  require  secrecy,  and  the  yeas  and  nays  of  the 
members  of  either  house  on  any  question  shall,  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal. 

§  4.  Neither  house  during  the  session  of  Congress  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

Section  6. 

§  1.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law  and  paid  out  of 
the  Treasury  of  the  United  States.  They  shall  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same;  and  for  any  speech 
or  debate  in  either  house  they  shall  not  be  questioned  in  any  other 
place. 

§  2.  No  senator  or  representative  shall,  during  the  time  for 
which  he  was  elected,  be  .^npointe^  to  any  civil  office  under  the 
authority  of  the  United  States    whieh  shall  have  been  created,  or 


CONSTITUTIONAL  LAW  379 

the  emoluments  whereof  shall  have  been  increased  during  such  time; 
and  no  person  holding  any  office  under  the  United  States  shall  be 
a  member  of  either  house  during  his  continuance  in  office. 

Section  7. 

§  1.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills. 

§2.  Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate  shall,  before  it  become  a  law,  be  presented 
to  the  President  of  the  United  States.  If  he  approve  he  shall  sign 
it,  but  if  not  he  shall  return  it,  with  his  objections,  to  that  house 
in  which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal  and  proceed  to  reconsider  it.  If  after  such 
reconsideration  two-thirds  of  that  house  shall  agree  to  pass  the  bill, 
it  shall  be  sent,  together  with  the  objections,  to  the  other  house, 
by  which  it  shall  likewise  be  reconsidered,  and  if  approved  by  two- 
thirds  of  that  house  it  shall  become  a  law.  But  in  all  guch.  cases 
the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  house,  respectively.  If  any  bill 
shall  not  be  returned  by  the  President  within  ten  daj's  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall 
be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it  shall  not 
be  a  law. 

§  3.  Every  order,  resolution,  or  vote  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary  (ex- 
cept on  a  question  of  adjournment)  shall  be  presented  to  the  Presi- 
dent of  the  United  States;  and  before  the  same  shall  take  effect 
shall  be  approved  by  him,  or,  being  disapproved  by  him,  shall  be 
repassed  by  two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  ease  of  a 
biU. 

Section  8. 

§  1.  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but  all  duties, 
imposts,  and  excises  shall  be  uniform  throughout  the  United  States; 

§  2.     To  borrow  money  on  the  credit  of  the  United  States ; 

§  3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
sever^  states,  and  with  the  Indian  tribes; 


880  APPENDIX 

§  4.  To  establish  an  uniform  rule  of  naturalization,  and  uni- 
form laws  ou  the  subject  of  bankruptcies  throughout  the  United 
States; 

§  5.  To  coin  monej',  regulate  the  value  thei'eof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures; 

§  6.  To  provide  for  the  punishment  of  counterfeiting  the  se- 
curities and  current  coin  of  the  United  States; 

§7.     To  establish  postoffices  and  postroads; 

§  8.  To  promote  the  progi-ess  of  science  and  useful  arts  by 
securing  for  limited  times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries; 

§9,    To  constitute  tribunals  inferior  to  the  Supreme  Court; 

§  10.  To  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas  and  ofEenses  against  the  law  of  nations; 

§  11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concenaing  captures  on  land  and  water; 

§  12.  To  raise  and  support  armies,  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years; 

§13.     To  provide  and  maintain  a  navy; 

§  14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces; 

§  15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions; 

§  16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  states  respec- 
tively the  appointment  of  the  oflScers,  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by  Congress; 

§  17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by  ces- 
sion of  particular  states  and  the  acceptance  of  Congress,  become 
the  seat  of  the  Government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  bj'  the  consent  of  the  legisla- 
ture of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings; 
and 

§  18.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 


CONSTITUTIONAL  LAW  381 

Section  9. 

§  1.  The  migration  or  importation  of  such  persons  as  any  of 
the  states  now  existing  shall  think  proper  to  admit  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  im- 
portation, not  exceeding  ten  dollars  for  each  person. 

§  2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

§  3.    No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

§  4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed  to 
be  taken. 

§  5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state. 

§  6.  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another;  nor 
shall  vessels  bound  to  or  from  one  state  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

§  7.  No  money  shall  be  drawn  from  the  Treasury,  but  in  con- 
sequence of  appropriations  made  by  law,  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

§8.  No  title  of  nobility  shall  be  granted  by  the  United  States; 
and  no  person  holding  any  office  of  profit  or  trust  under  them  shall, 
without  the  consent  of  the  Congress,  accept  of  any  present,  emolu- 
ment, ofBce,  or  title  of  any  kind  whatever  from  any  king,  prince 
or  foreign  state. 

Section  10. 

§  1.  No  state  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration, grant  letters  of  marque  and  reprisal,  coin  money,  emit  bills 
of  credit,  make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts,  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

§  2.  No  state  shall,  without  the  consent  of  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  ab- 
solutely necessary  for  executing  its  inspection  laws;  and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  state  on  imports  or 
exports  shall  be  for  the  use  of  the  Treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of 
the  Congress. 

Vol   ia-2ft. 


382  APPENDIX 

§  3.  No  state  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnag^T  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  state  or  with 
a  foreign  power,  or  engage  in  war,  unless  actually  invaded  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 

ARTICLE  n. 
Section  1. 

§  1.  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  daring  the  term 
of  four  years,  and,  together  with  the  Vice-President,  chosen  for  the 
same  term,  be  elected  as  follows: 

§  2.  Each  state  shall  appoint,  in  such  manner  as  the  legisla- 
ture thereof  may  direct,  a  number  of  electors,  equal  to  the  whole 
number  of  senators  and  representatives  to  which  the  state  may  be 
entitled  in  the  Congress;  but  no  senator  or  representative,  or  per- 
son holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

§  3.  The  electors  shall  meet  in  their  respective  states  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  state  with  themselves.  And  they  shall  make 
a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for 
each,  which  list  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  government  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  hav- 
ing the  gi-eatest  number  of  votes  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed; 
and  if  there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  House  of  Representatives  shall 
immediately  choose  by  ballot  one  of  them  for  President;  and  if 
no  person  have  a  majority,  then  from  the  five  highest  on  the  list 
the  said  House  shall  in  like  manner  choose  the  President.  But  in 
choosing  the  President  the  votes  shall  be  taken  by  states,  the  rep- 
resentation from  each  stace  ha\'ing  one  vote.  A  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of 
the  States,  and  a  majority  of  all  the  states  shall  be  necessary  to 
a  choice.  In  every  case,  after  the  choice  of  the  President,  the  per- 
son having  the  greatest  number  of  votes  of  the  electors  shall  be 
the  Vice-President.    But  if  there  should  remain  two  or  more  who 


CONSTITUTIOxNAL  LAW  383 

have  equal  votes,  the  Senate  shall  choose  from  them  by  ballot  the 
Vice-President.     [This  paragraph  superseded  by  Amendment  XII.] 

§  4.  The  Congress  may  determine  the  time  of  choosing  the  elec- 
tors and  the  day  on  which  they  shall  give  their  votes,  which  day 
shall  be  the  same  throughout  the  United  States. 

§  5.  No  person  except  a  natural-born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President;  neither  shall  any  person 
be  eligible  to  that  office  who  shall  ncft  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

§  6.  In  case  of  the  removal  of  the  Px-esident  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice-Presi- 
dent, and  the  Congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as  President,  and 
such  officer  shall  act  accordingly  until  the  disability  be  removed 
or  a  President  shall  be  elected. 

§  7.  The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  may  have  been  elected,  and  he  shall 
not  receive  within  that  period  any  other  emolument  from  the  United 
States  or  any  of  them. 

§  8.  Before  he  enter  on  the  execution  of  bis  office  he  shall  take 
the  following  oath  or  affirmation: 

**I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will  to  the  best 
of  my  ability  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

Section  2. 

§  1.  The  President  shall  be  Commander-in-Chief  of  the  Army 
and  Navy  of  the  United  States,  and  of  the  militia  of  the  several 
states  when  called  into  the  actual  service  of  the  United  States.  He 
may  require  the  opinion  in  writing  of  the  principal  officer  in  each 
of  the  executive  departments  upon  any  subject  relating  to  the 
duties  of  their  respective  offices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United  States,  ex- 
cept in  cases  of  impeachment. 

§  2.  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the  sena- 


884  APPENDIX 

tors  present  concur;  and  he  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint  ambassa- 
dors, other  public  ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States,  whose  appoint- 
ments are  not  herein  othei-wise  provided  for,  and  which  shall  be 
established  by  law;  but  the  Congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers  as  they  think  proper  in  the  Presi- 
dent alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. 

§3.  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate  by  granting  commis- 
sions which  shall  expire  at  the  end  of  their  next  session. 

Section  3. 
He  shall  from  time  to  time  give  to  the  Congress  information 
of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient.  He  may, 
on  extraordinary  occasions,  convene  both  houses,  or  either  of  them, 
and  in  case  of  disagreement  between  them  with  respect  to  the  time 
of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper;  he  shall  receive  ambassadors  and  other  public  min- 
isters; he  shall  take  care  that  the  laws  be  faithfully  executed,  and 
shall  commission  all  the  officers  of  the  United  States. 

Section  4. 
The  President,  Vice-President,  and  all  civil  officers  of  the  United 
States  shall  be  removed  from  office  on  impeachment  for  and  con- 
viction of  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 

ARTICLE  in. 
Section  1. 

The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  judges,  both  of  the 
supreme  and  inferior  courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a 
compensation  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

Section  2. 

§  1.    The  judicial  power  shall   extend  to   all  cases,  in  law  and 

equity,    arising    under   this    Constitution,   the    laws    of   the    United 

States,    and    treaties   made,    or   which   shall   be   made,    under   their 

authority;    to    all    cases    affecting   ambassadors,    other   public   min- 


CONSTITUTIONAL  LA.W  385 

isters,  and  consuls;  to  all  eases  of  admiralty  and  maritime  juris- 
diction; to  controversies  to  which  the  United  States  shall  be  a  party; 
to  controversies  between  two  or  more  states;  between  a  state  and 
citizens  of  another  state;  between  citizens  of  different  states;  be- 
tween citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states,  and  between  a  state,  or  the  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects. 

§  2.  In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the  Su- 
preme Court  shall  have  original  jurisdiction.  In  all  the  other  cases 
before  mentioned  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make. 

§  3.  The  trial  of  all  crimes,  except  in  eases  of  impeachment, 
shall  be  by  jury;  and  such  trial  shall  be  held  in  the  state  where 
the  said  crimes  shall  have  been  committed;  but  when  not  committed 
within  any  state,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

Section  3. 

§  1.  Treason  against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort.  No  person  shall  be  convicted  of  treason  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court. 

§  2.  The  Congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture  except  during  the  life  of  the  person  attainted. 

ARTICLE  IV. 
Section  1. 
Full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state.  And 
the  Congress  may  by  general  laws  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

Section  2. 

§  1.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states. 

§  2.  A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from  which 


886  APPENDIX 

he  fled,  be  delivered  up,  to  be  removed  to  the  state  having  juris- 
diction of  the  crime. 

§  3.  No  person  held  to  service  or  labor  in  one  state,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  la- 
bor, but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due. 

Section  3. 

§1.  New  states  may  be  admitted  by  the  Congress  into  this 
Union  J  but  no  new  states  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states  or  parts  of  states,  without  the  con- 
sent of  the  legislatures  of  the  states  concerned,  as  well  as  of  the 
Congress. 

§  2.  The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  resjjecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this  Con- 
stitution shall  be  so  constructed  as  to  prejudice  any  claims  of  the 
United  States  or  of  any  particular  state. 

Section  4 

The  United  States  shall  guarantee  to  every  state  in  this  Union 
a  republican  fonn  of  government,  and  shall  protect  each  of  them 
against  invasion,  and  on  application  of  the  legislature,  or  of  the 
executive  (when  the  legislature  cannot  be  convened),  against  domestic 
violence. 

ARTICLE  V. 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  legislature  of  two-thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments,  which  in 
either  case  shall  be  valid  to  all  intents  and  purposes  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  states,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed  by 
the  Congress,  provided  that  no  amendments  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and  eight  shall  in 
any  manner  affect  the  first  and  fourth  clauses  in  the  ninth  sec- 
tion of  the  first  article;  and  that  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 


I 


CONSTITUTIONAL  LAW  387 

ARTICLE  VI. 

§  1.  All  debts  contracted  and  engagements  entered  into  before 
the  adoption  of  this  Constitution  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

§  2.  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  state  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding. 

§  3.  The  senators  and  representatives  before  mentioned,  and 
the  members  of  the  several  state  legislatures,  and  all  executive  and 
judicial  ofiieers,  both  of  the  United  States  and  of  the  several  states, 
shall  be  bound  by  oath  or  affirmation  to  support  this  Constitution; 
but  no  religious  test  shall  ever  be  required  as  a  qualification  to 
any  office  or  public  trust  under  the  United  States. 

ARTICLE  YII. 

The  ratification  of  the  conventions  of  nine  states  shall  be  suf- 
ficient for  the  establishment  of  this  Constitution  between  the  states 
so  ratifying  the  same  (1). 

Done   in   convention  by   the   unanimous   consent   of  the   states 
present,  the   seventeenth   day  of  September,  in   the  year  of 
our  Lord,  one  thousand  seven  hundred  and  eighty-seven,  and 
of  the   independence   of   the   United   States   of  America   the 
twelfth.    In   witness   whereof,   we   have   hereunto   subscribed 
our  names. 
George  Washington,  President  and  Deputy  from  Virginia. 
New,  Hampshire — John  Langdon,  Nicholas  Oilman. 
Massachusetts — ^Nathaniel  Gorham,  Rufus  King. 
Connecticut — William  Samuel  Johnson,  Roger  Sherman. 
New  York — Alexander  Hamilton. 

New  Jersey — William  Livingston,  David  Brearly,  William  Patterson, 
Jonathan  Dayton. 


(1)      The    Constitution    became   operative   March    4,    1789.      Owings   v.    Speed, 
5  Wheat.  420. 

The  States  ratified  the  Constitution  in  the  following  order : 

Delaware    December    7.  1787  South   Carolina    May   23,  1788 

Pennsylvania    December   12,  1787  New    Hampshire    June    21,  1788 

New   Jersey    December   18,  1787  Virginia    June  25,  1788 

Georgia    January   2,  1788  New   York    July   26,  17SS 

Connecticut    January    9,  1788  North   Carolina.  ..  .November   21,  1789 

Massachusetts    February  6,  1788  Rhode  Island    May  29,  1790 

Maryland    April    28,  1788 


3SS  APPENDIX 

Pennsylvania — Benjamin  Fi-anklin,  Thomas  MifQln,  Robert  Morris, 
Gcorcre  Clymor,  Thomas  Fitz  Simons,  Jared  Ingersoll,  Jamea 
Wilson,  Gouvemeur  MoitIs. 

Delaware — George  Read,  Gunning  Bedford,  Jr.,  John  Dickinson, 
Richard  Bassett,  Jacob  Broom. 

Marj-land — James  McHenry,  Daniel  of  St.  Thomas  Jenifer,  Daniel 
Carroll. 

Virginia — John  Blair,  James  Madison,  Jr. 

North  Carolina — ^William  Blount,  Richard  Dobbs  Spaight,  Hugh  Wil- 
liamson. 

South  Carolina — John  Rutledge,  Charles  Cotesworth  Pinckney, 
Charles  Pinckney,  Pierce  Butler. 

Georgia — William  Few,  Abraham  Baldwin. 

Attest :     William  Jackson,  Secretary. 

AMENDMENTS. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech  or  of  the  press;  or  the  right  of  the  people  peace- 
ably to  assemble,  and  to  petition  the  government  for  a  redress  of 
grievances. 

ARTICLE  n. 

A  well-regulated  militia  being  necessarj'  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law. 

ARTICLE  IV. 
The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures  shall 
not  be  violated,  and  no  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  person  or  things  to  be  seized. 

ARTICLE  V. 
No   person  shall   be  held  to   answer  for  a   capital  or  otherwise 


CONSTITUTIONAL  LAW  889 

infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensation. 

ARTICLE  VI. 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  de- 
fense. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

ARTICLE  Vni. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not 
be  constinied  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively  or  to  the  people  (2). 

ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 


(2)     Amendmentb  I  to  X  were  In  force  Nov.  S,  1791. 


390  APPENDIX 

one  of  the  United  States  by  citizens  of  another  state,  or  by  citizens 
or  subjects  of  any  foreign  state (3). 

ARTICLE  Xn. 

The  electors  shall  meet  in  their  respective  states  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  state  with  themselves;  they  shall 
name  in  their  ballot  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each;  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  for  President  shall  be  the  President,  if 
such  number  be  a  majority  of  the  whole  number  of  electors  appointed ; 
and  if  no  person  have  such  majority,  then  from  the  persons  having 
the  highest  numbers,  not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  im- 
mediately, by  ballot,  the  President.  But  in  choosing  the  President 
the  votes  shall  be  taken  by  states,  the  representation  from  each  state 
having  one  vote;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  neeessarj^  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the  right  of 
choice  shall  devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President 
shall  be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed;  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list  the  Senate  shall 
choose  the  Vice-President;  a  quorum  for  the  puipose  shall  consist 
of  two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  neeessar\'  to  a  choice.  But  no  person  con- 
stitutionally ineligible  to  the  office  of  President  shall  be  eligible  to 
that  of  Vice-President  of  the  United  States  (4). 


(3)  In  force  Jan.  8,  1798. 

(4)  In   force  Sept.   25.   1804. 


CONSTITUTIONAL  LAW  391 


ARTICLE  XIII. 


Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States  or  any  place  subject  to 
their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation  (5). 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the  United  State^ 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.  No  state  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  sev- 
eral states  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  state,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  Representatives 
in  Congress,  the  executive  and  judicial  officers  of  a  state,  or  the  mem- 
bers of  the  legislature  thereof,  is  denied  to  any  of  the  male  inhabitants 
of  such  state,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion,  or  other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  state. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or  hold  any 
office,  civil  or  military,  under  the  United  States  or  under  any  state, 
who,  having  previously  taken  an  oath  as  a  member  of  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a  member  of  any  state 
legislature,  or  as  an  executive  or  judicial  officer  of  any  state,  to  sup- 
port the  Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds  of 
each  house,  remove  such  disability. 


(5)     In  force  Dec.  18,  1665. 


392  APPENDIX 

?!rcTioN  4.  The  validity  of  the  public  tlebt  of  the  United  States, 
authorized  by  law,  iiu-luding  debts  Incurred  for  payment  of  pensions 
and  lK)UUties  for  services  In  suppressing  Insurrection  or  rebellion, 
shall  not  lie  questioned.  But  neither  the  United  States  nor  any  state 
shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  in- 
surrection or  rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article  (6). 

ARTICLE  XV. 
Section  1.    The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any  state  on 
account  of  race,  color,  or  previoas  condition  of  servitude. 

Section  2.  The  Congress  shafl  have  power  to  enforce  this  article 
by  appropriate  legislation  (7). 

ARTICLE  XVI. 

The  Congress  shall  have  ix)wer  to  lay  and  collect  taxes  on  incomes 
from  whatever  source  derived,  without  apportionment  among  the  sev- 
eral states,  and  without  regard  to  any  census  or  enumeration  (8). 

ARTICLE  XVIL 

The  Senate  of  the  United  States  shall  be  composed  of  two  senators 
from  eacii  state,  elected,  by  the  people  thereof,  for  six  years ;  and 
each  senator  shall  have  one  vote.  The  electors  in  each  state  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numerous  branch 
of  the  state  legislature. 

When  yacancies  happen  In  the  rei>r6seutatlon  of  any  state  in  the 
Senate,  the  executive  authority  of  such  state  shall  issue  writs  of 
election  to  fill  such  vacancies,  provided  that  the  legislature  of  any 
state  may  empower  the  executive  thereof  to  make  temporary  appoint- 
ments until  the  people  fill  the  vacancies  by  election  as  the  legislature 
may  direct  (9). 

ARTICLE  XVIII. 

§  1.  After  one  year  from  the  ratification  of  this  article,  the 
manufacture,  sale,  or  transportation  of  intoxicating  liquors  within, 
the  importation  thereof  into,  or  the  exportation  thereof  from,  the 
United  States  and  all  territory  subject  to  the  jurisdiction  thereof  for 
beverage  purposes  is  hereby  prohibited. 

§  2.  The  Congress  and  the  several  states  shall  have  concur- 
rent power   to   enforce   this    article  by  appropriate   legislation. 

§  3.  This  article  shall  be  inoperative  unless  it  shall  have  been 
ratified  as  an  amendment  to  the  Constitution,  by  the  legislatures  of 
the  several  states,  as  provided  in  the  Constitution,  within  seven 
years  from  the  date  of  the  submission  hereof  to  the  states  by  the 
Congress.     (10) 


APPENDIX  392a 

ARTICLE  XIX. 

§  1.  The  right  of  the  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  state 
on  account  of  sex. 

§  2.  Congress  shall  have  power  by  appropriate  legislation  to 
enforce  the  provisions  of  this  article.  (11) 


(G)  In  force  July  28,  1868. 

(7)  In  force  Mar.  30,  1870. 

(8)  In  force  Feb.  25.  1913. 

(9)  In  force.  May  31,   1913. 

(10)  Ratified  Jan.   16,   1919,    effective  Jan.    16,   1920, 

(11)  lu  force  Aug.   26,    1920. 


APPENDIX  B 

QUESTIONS  — CONSTITUTIONAL  LAW. 

§  2.  Is  it  legally  possible  to  have  a  constitution  unless  it  ia 
in  writing? 

§  5.  What  are  the  various  functions  of  the  constitution  of  the 
American  States? 

§  8.    What  state  has  the  oldest  constitution  ? 

§  10.  Did  the  Constitution  of  the  United  States  become  effective 
as  soon  as  passed  by  the  constitutional  convention? 

§  12.    If  a  constitution  contains  no  provision  providing  for  its 
amendment  how  may  it  be  amended? 
may  it  be  amended  in  other  ways  not  specified? 

§  13.    If  a  constitution  provides  one  specific  way  of  amendment, 

§  18.  If  a  court  should  decide  in  favor  of  a  corporation  could 
the  legislature  or  Congress  by  unanimous  vote  constitutionally  set 
aside  the  judgment? 

Could  it  constitutionally  do  so  if  the  act  was  affirmed  by  the  gov- 
ernor or  President? 

§  20.  Would  a  statute  providing  that  where  an  act  of  the  legis- 
lature had  been  vetoed  by  the  governor  it  might  nevertheless  become 
a  law  if  assented  to  by  a  majority  of  the  Supreme  Court  judges  be 
constitutional  ? 

§  21.  Could  a  statute  constitutionally  deprive  a  court  of  its  power 
to  punish  summarily  a  person  who  was  guilty  of  contempt  in  the 
presence  of  the  court  ? 

§  23.  Would  a  statute  giving  the  county  court  power  to  assess 
and  collect  the  county  taxes  be  constitutional? 

§27.  If  the  Constitution  of  the  United  States  neither  expressly 
nor  by  implication  confers  power  upon  Congress  to  pass  certain 
kinds  of  statutes,  but  on  the  other  hand  neither  expressly  nor  by 
implication  denies  it  that  power,  may  Congress  pass  such  statutes? 

§  28.  The  constitution  of  the  United  States  gives  Congress  the 
power  to  regmlate  commerce  with  foreign  nations;  there  is  nothing 

393 


994  CONSTITITTIONAL  LAW 

in  the  constitution  saying  that  states  may  not  also  do  so.  May  a 
stale  pass  a  statute  regulating  conunerce  with  a  foreign  nation? 

§  32.  Have  the  English  court*  power  to  declare  an  act  of  Parlia- 
ment unconstitutional? 

§  33.  Wliat  are  the  historical  reasons  for  the  American  doctrine 
of  Constitutional  Law  that  the  courts  may  declare  acts  of  the  legis- 
lative branch  unconstitutional? 

§  36.  TVhat  are  the  objections  to  the  arguments  for  the  doctrine 
that  the  courts  may  declare  an  act  of  Congress  unconstitutional? 

§  37.  Has  the  court  constitutional  power  to  notify  Congress  that 
an  act  which  is  about  to  pass  or  has  passed  is  unconstitutional? 

§  38.  A  legislature  passed  an  act  providing  that  women  should 
not  work  over  9  houi-s  a  day.  The  members  of  the  Supreme  Court 
are  of  the  opinion  that  such  legislation  is  ill-advised,  and  that  a 
woman  may,  without  injui-y  to  herself,  work  more  than  9  hours  a  day. 
Should  the  court  therefore  declare  the  act  unconstitutional? 

§  41.  A  statute  of  the  United  States  declared  all  the  waters  with- 
in 1,000  miles  of  the  coast  of  Alaska  to  be  American  waters  and 
forbade  any  foreigner  to  fish  or  seal  there.  May  the  court  declare 
such  an  act  unconstitutional  for  the  reason  that  such  waters  clearly 
do  not  politically  belong  to  the  United   States? 

§  42.  Suppose  the  constitution  of  a  state  requires  the  governor 
to  either  approve  or  veto  every  act  of  the  legislature  submitted  to 
him  and  the  governor  refuses  to  do  either.  May  he  be  compelled  by 
the  court  to  do  one  or  the  other? 

§  43.  Suppose  a  statute  created  an  unnecessarily  large  number 
of  officers  and  gave  them  unreasonably  large  salaries  so  that  the 
whole  scheme  was  obviously  one  to  plunder  the  state.  Could  the  act 
be  declared  unconstitutional  for  this  reason? 

§  44.  A  statute  foi-bade  naturally  competing  railroads  to  agree 
as  to  rates.  A  suit  was  brought  by  a  stockholder  against  his  rail- 
road to  enjoin  it  from  making  an  agreement  as  to  rates  with  a  com- 
peting road.  The  suit  was  brought  to  test  the  act  and  both  the  stock- 
holder and  the  railroad  wanted  it  declared  unconstitutional.  If  this 
fact  was  brought  to  the  attention  of  the  court  could  it  decline  to 
hear  the  ease? 

What  condition  might  it  require  before  it  would  hear  it? 

§  45.  A  statute  was  passed  authorizing  constables  to  attach  prop- 
erty without  waiTants.  A  constable  attached  the  property  of  Jones 
under  this  statute.  It  was  later  declared  unconstitutional.  Has 
Jones  a  right  of  action  against  the  constable? 


APPENDIX  395 

§  46.  Suppose  the  statute  in  the  above  case  had  also  provided 
in  another  part  for  the  arrest  of  persons  upon  warrants  duly  sworn 
out.  Would  the  fact  that  the  first  part  was  declared  unconstitu- 
tional necessarily  render  this  latter  part  also  bad? 

§  47.  Are  there  any  states  in  which  the  court  may  legally  give 
its  opinion  on  the  constitutionality  of  statutes  not  in  litigation"? 

§  §  62,  65.  What  is  the  difference  in  the  nature  of  the  legal 
rights  created  and  the  scope  and  purpose  of  the  following  constitu- 
tional provisions: — that  regulating  the  qualifications  of  members  of 
Congress;  that  providing  that  no  state  may  coin  money;  that  pro- 
viding that  no  person  shall  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law;  that  providing  that  if  the  governor  vetoes 
an  act  of  the  legislature  he  must  give  his  reason  for  so  doing? 

§  67.  A  state  passes  a  statute  doing  away  with  jury  trials  where 
the  amount  involved  is  less  than  $30.  Is  such  a  statute  in  conflict 
with  the  seventh  amendment  to  the  Constitution  of  the  United  States? 

§  68.  What  are  the  more  important  provisions  of  the  original 
Constitution  of  the  United  States  that  limit  the  powers  of  the  state 
governments? 

§  72.  A  hotel  keeper  refused  admission  to  a  negro  citizen  of 
the  United  States  solely  for  the  reason  that  he  was  a  negro.  Was 
his  action  in  violation  of  the  fourteenth  amendment? 

Would  it  have  made  any  difference  if  there  had  been  an  act  of 
Congress  forbidding  keepers  of  hotels  to  exclude  citizens  of  the  United 
States  solely  on  account  of  their  color? 

§  73.  Would  it  have  made  any  difference  in  the  above  case  if 
the  statute  had  included  the  registrar  of  deeds  and  a  negro  citizen 
had  been  excluded  from  the  offices  of  a  registrar  of  deeds  solely  be- 
cause he  was  a  negro? 

§  74.  Would  a  state  statute  requiring  all  barbers  to  be  licensed 
be  in  violation  of  that  part  of  the  fourteenth  amendment  to  the  Con- 
stitution of  the  United  States  which  forbids  a  state  to  abridge  the 
privileges  and  immunities  of  the  citizens  of  the  United  States? 

Would  a  state  statute  that  forbade  a  person  to  send  out  of  the 
state  any  manufactured  product  not  made  wholly  in  the  state  be  in 
violation  of  the  above  mentioned  amendment? 

§  77.  Is  a  Chinese  child  born  in  this  country  a  citizen  of  the 
United  States? 

§  79.    Might  it  make  any  difference  in  the  above  case  according 

as  the  child  was  born  in  New  Mexico  or  the  Philippines? 
Vol.   ia-27. 


39(5  CONSTITUTIONAL  LAW 

§81.  "WonUl  the  child  of  the  British  Ambassador,  if  born  u. 
Washington,   be   a  citizen   of   the   United    States'? 

§  82.  Would  a  child  born  of  French  parents  on  a  French  war- 
ship while  lying  in  New  York  harbor  be  a  citizen  of  the  United  States'? 

§  86.  Is  it  possible  for  a  person  born  of  Indian  parents  to  be  a 
citizen  of  the  United  States? 

§  87.  Is  a  corporation  chartered  in  any  of  the  states  a  citizen  of 
the  United  States? 

§  88.  Which  of  the  following  persons  could  be  naturalized,  as- 
suming in  each  case  that  he  could  show  the  necessary  length  of  res- 
idence in  one  of  the  United  States:  a  Japanese,  a  Mexican,  a  Sam- 
can,  a  Filipino? 

§  90.  Would  a  child  of  American  parents  born  in  France  be  a 
citizen  of  the  United  States? 

§  92.  Could  Congress  constitutionally  provide  when  and  how  the 
members  of  the  House  of  Representatives  should  be  chosen  in  the 
different  states? 

Could  a  state  constitutionally  provide  that  its  presidential  electors 
should  be  appointed  by  the  governor  of  the  state  ? 

§  §  93,  94.  Could  a  state  constitutionally  limit  the  suffrage  to  per- 
sons having  an  income  of  $10,000  a  year  or  more? 

§  95.  Does  a  citizen  of  the  United  States  have  as  such  a  right  to 
vote? 

§  98.  Would  an  act  of  Congress  forbidding  the  sending  of  in- 
decent matter  through  the  mails  be  in  violation  of  the  provision  that 
"Congress  shall  make  no  law  abridging  the  freedom  of  speech  or 
of  the  press?" 

§  100.  Would  a  statute  that  forbade  a  person  to  own  or  carry 
firearms  unless  he  had  a  license,  be  a  violation  of  the  constitutional 
provision  that  "the  right  of  the  people  to  bear  arms  shall  not  be 
infringed  ? ' ' 

§  102.  A  sailor  who  deserted  his  vessel  was  arrested  and  brought 
back  under  a  statute  covering  the  case.  Was  this  a  violation  of  the 
thirteenth  amendment  against  involuntary  servitude  except  as  a  pun- 
ishment for  crime? 

§  103.  Would  the  same  principle  apply  to  the  case  of  a  person 
who  agreed  to  work  on  a  farm  for  six  months  and  left  before  that, 
time  and  was  forcibly  brought  back  under  a  statute  and  compelledj 
to  work  ? 

§  104.    Would    a   statute    forbidding   religious    meetings    in    the] 
crowded  streets  of  a  city  be  in  violation  of  the  clause  that  "Con- 


APPENDIX  397 

gress  shall  make  no  laws  respecting  an  establishment  of  religion  or 
prohibit  the  free  exercise  thereof?" 

§  106.  "What  are  the  historical  origins  of  the  provisions  of  the 
Constitution  protecting  the  rights  of  a  person  accused  of  crime'? 

§  107.    What  is  a  bill  of  attainder? 

§  108.  Is  a  statute  that  gives  a  right  of  appeal  in  cases  where 
it  did  not  formerly  exist  ex  post  facto  as  to  cases  already  tried? 

§  109.  Would  a  statute  that  allowed  a  three-fourths  verdict  in 
criminal  cases  be  ex  post  facto  as  to  crimes  already  committed? 

§  110.  Would  a  statute  that  changed  the  punishment  of  a  wife- 
beater  from  imprisonment  to  whipping  be  ex  post  facto  as  to  offenses 
committed  before  it  was  passed? 

§  111.  Would  a  statute  that  increased  the  number  of  challenges 
on  the  part  of  both  the  accused  and  the  state  be  ex  post  facto  as 
to  previous  offenses? 

§  113.  A  state  passed  a  statute  requiring  all  chauffeurs  to  be 
licensed  and  provided  that  no  person  who  had  ever  been  convicted 
of  a  criminal  offense  could  obtain  a  license.  Is  such  a  statute  un- 
constitutional ? 

§  114.  Alexander  Jones  was  accused  of  murder  and  denied  that 
he  was  the  man  wanted.  On  his  trial  he  was  compelled  to  turn  up 
his  shirt  sleeve  and  show  the  name  ''Alexander  Jones"  tattooed  on 
his  arm.    Was  this  a  violation  of  any  constitutional  right? 

§  115.  A  coiporation  known  as  the  United  Flour  Company  was 
indicted  for  criminally  receiving  rebates  in  violation  of  a  United 
States  statute.  The  president  was  called  as  a  witness  and  com- 
pelled to  admit  that  the  company  had  received  such  rebates.  Was 
this  a  violation  of  the  constitutional  privilege  against  self-incrimi- 
nation and  if  so  whose  right  had  been  violated? 

§  117.  Suppose  the  testimony  given  in  the  last  case  had  been 
of  a  kind  that  rendered  the  president  of  the  company  personally 
liable  to  criminal  indictment,  would  the  protection  of  the  constitu- 
tion of  the  United  States  forbid  an  indictment  against  him  in  a 
state  court  based  upon  the  evidence  given  in  the  first  case? 

§  118.  Suppose  that  a  United  States  statute  provided  that  where 
any  person  brought  an  action  to  recover  goods  alleged  to  be  in  the 
possession  of  another  person,  the  house  of  the  latter  might  at  any 
time  be  searched  by  an  officer  without  a  warrant  and  the  property 
so  claimed  recovered.  Would  such  a  statute  be  a  violation  of  the 
constitutional  provision  that  "the  right  of  the  people  to  be  secure 
in  their houses shall  not  be  violated"? 


398  CONSTITUTIONAL  LAW 

§  119.  If  the  language  of  the  statute  authorizing  the  action  is 
clear,  may  a  letter  in  the  mails  be  opened  upon  order  of  the  Post- 
master General  for  the  purpose  of  obtaining  evidence  against  persons 
suspected  of  crimes? 

§  121.  May  Congress  by  appropriate  legislation  provide  that  a 
verdict  of  three-fourths  of  a  jury  shall  be  sufficient? 

§  123.  A  defendant  was  indicted  in  a  federal  court  for  a  mis- 
demeanor. He  asked  for  and  was  refused  a  trial  by  jury.  Is  this  a 
violation  of  the  constitutional  provision  that  "in  all  criminal  prose- 
cutions the  accused  shall  enjoy  the  right  to  a trial by 

a  jury?" 

§  125.  Suppose  in  the  above  case  that  the  punishment  for  the 
misdemeanor  was  a  fine  of  not  more  than  $10,  would  the  fact  that 
the  defendant  was  tried  without  having  been  indicted  by  a  grand 
jury  be  a  violation  of  his  constitutional  rights? 

§  128.  A  statute  pro\nded  that  any  saloonkeeper  who  should  keep 
his  saloon  open  beyond  the  legal  closing  hour  should  be  punished  by 
a  fine  of  not  less  than  $5.00  nor  more  than  $10.00  for  each  hour 
the  saloon  was  so  kept  open.  Smith,  a  saloonkeeper,  for  two  months 
kept  his  saloon  open  five  hours  a  night  later  than  the  regular 
closing  time.  He  was  indicted  under  the  above  statute  and  it  being 
proved  that  he  had  illegally  kept  open  a  total  of  300  hours,  the  court 
fined  him  $3,000.  He  appealed  on  the  ground  that  this  was  a  vio- 
lation of  the  constitutional  provision  against  cruel  and  unusual  pun- 
ishments.    Is  his  contention  sound? 

§  132.  A  state  statute  provided  that  if  courts  were  so  busy  that 
they  were  behind  in  their  work  they  might  refer  cases  where  the 
amount  in  dispute  was  less  than  $100  to  any  disinterested  lawyer, 
who  should  give  proper  notice  to  the  parties  and  then  proceed  to 
try  the  case  without  a  jury.  Is  such  a  statute  in  violation  of  the 
fourteenth  amendment  providing  for  '  *  due  process  of  law  ? ' ' 

§  134.  A  statute  authorized  the  boards  of  health  of  cities  and 
towns  to  summarily  seize  and  destroy  any  decayed  vegetables  or 
meat  that  should  be  offered  for  sale.  Was  this  statute  unconsti- 
tutional ? 

§  137.  A  United  States  statute  provided  that  if  any  Mongolian 
laborer  without  a  passport  should  be  found  in  the  United  States  he 
should  be  ordered  deported  by  the  Commissioner  of  Immigration.  A 
Chinese  laborer  found  in  the  United  States  without  a  passport,  on 
being  ordered  by  the  Commissioner  of  Immigration  to  be  deported, 
swore  out  a  writ  of  habeas  corpus  on  the  ground  that  the  statute 


APPENDIX  399 

violated  that  part  of  the  Constitution  which  provides  that  "no  per- 
son should  be  deprived  of    liberty  without  due  process   of 

law."    Is  his  contention  sound? 

§  138.  Would  it  make  any  difference  if  t^  Chinaman  had  been 
born  in  the  United  States  and  was  therefore  a  citizen  thereof? 

§  143.  The  law  of  a  state  provided  that  no  woman  should  be 
eligible  to  sit  on  a  jury.  A  woman  was  being  tried  for  some  crime 
and  claimed  that  the  statute  in  effect  was  in  violation  of  that  part 
of  the  fourteenth  amendment  that  forbids  states  to  deny  to  per- 
sons the  equal  protection  of  the  laws.    Is  the  claim  sound? 

§  146.  Would  a  state  statute  be  constitutional  that  provided  that 
no  resident  of  the  state  should  make  any  contract  or  engage  in  bus- 
iness with  a  person  not  a  resident  of  the  state? 

§  148.  A  state  statute  provided  that  all  motormen  must  undergo 
a  state  examination  and  receive  a  state  license  before  they  could 
act  as  motormen  in  cities  of  more  than  25,000  inhabitants.  Is  this 
law  open  to  the  objection  of  class  legislation  because  it  does  not 
apply  to  chauffeurs  and  locomotive  engineers;  or  because  it  does  not 
apply  to  cities  of  less  than  25,000? 

§  149.  A  state  increased  the  requirements  as  to  amount  of  re- 
serve, protection  of  policy  holders,  etc.,  in  the  insurance  business 
and  provided  that  all  insurance  companies  not  conforming  thereto 
should  not  do  business  in  the  state.  Is  this  statute  luieonstitutional 
as  to  insurance  companies  already  doing  business  in  the  state? 

§  153.  John  Doe  owned  a  house  in  a  respectable  though  not 
wealthy  part  of  Chicago.  The  legislature  passed  an  act  authorizing 
city  councils  to  set  off  parts  of  their  respective  cities  as  quarters 
in  which  prostitutes  should  be  confined.  The  council  of  Chicago  set 
of^  that  part  of  the  city  in  which  Doe  lived  as  a  section  for  prosti- 
tutes. As  a  result  his  property  was  greatly  depreciated  in  value. 
He  claims  that  the  statute  is  unconstitutional  as  being  a  depriva- 
tion of  property  without  due  process  of  law.  Is  his  contention 
sound  ? 

§  156.  Would  a  statute  be  constitutional  that  required  all  boot 
blacks  to  go  before  an  examining  board  to  take  out  a  license? 

§  §  159,  160.  Which  of  the  following  statutes  would  be  held  un- 
constitutional today:  a  statute  forbidding  the  giving  of  trading 
stamps:  one  forbidding  the  discharge  of  an  employee  because  he 
belonged  to  a  labor  union;  one  forbidding  the  collection  of  debts  by 
threatening  to  get  the  debtor's  employer  to  discharge  him  if  he 
did  not  pay? 


400  CONSTITUTIONAL  LAW 

§  161.  Why  would  a  statute  fixine:  the  rates  at  which  sellers  of 
automobiles  should  sell  their  machines  be  held  unconstitutional  while 
a  statute  fixing  the  rates  at  which  railroad  companies  should  cany 
passengers  and  freight  might  be  held  constitutional? 

§  163.  Would  a  statute  forbidding  the  growers  of  private  forests 
to  cut  them  in  such  a  way  as  to  waste  the  lumber  be  constitutional? 

§  165.  Could  a  state  constitutionally  require  street  railway 
companies  to  equip  their  cars  with  fenders  at  their  own  expense? 

§  167.  In  1002  John  Brown  took  up  a  homestead  on  state  lands. 
In  1905  he  received  his  deed  from  the  state;  and  six  months  later 
conveyed  the  land  to  James  White.  At  that  time  a  state  law  re- 
quired that  all  persons  selling  homesteaded  lands  within  one  year 
after  they  got  the  title  thereto  should  acknowledge  the  deed  before 
the  judge  of  the  county  court.  Brown  did  not  so  acknowledge  so 
that  the  title  to  the  property  still  remained  in  him.  In  1907  the  state 
passed  a  statute  validating  all  conveyances  of  homesteaded  land 
made  since  1900.  Under  this  statute  White  laid  claim  to  the  land. 
Brown  claimed  that  the  statute  was  unconstitutional  (1)  because  it 
was  ex  post  facto;  (2)  because  it  deprived  him  of  his  property  with- 
out due  process  of  law.    Is  either  contention  sound? 

§  175.  The  T.  H.  &  U.  R.  R.,  an  Illinois  corporation,  running  from 
Chicago,  111.,  through  Iowa,  and  Nebraska  to  Denver,  Colo.,  had 
rolling  stock,  rails,  etc.,  worth  $3,000,000.  Its  terminal  in  Chicago 
was  worth  $3,000,000,  and  in  Denver  $100,000.  Its  other  stations, 
etc.,  were  worth  $400,000  divided  equally  between  the  four  states. 
Its  total  coi'porate  assets,  tangible  and  intangible,  were  $56,500,000. 
The  amount  of  business  done  in  the  four  states  was  Illinois,  4-12; 
Iowa,  3-12;  Nebraska,  3-12;  Colorado,  2-12.  Upon  what  amount  may 
the  railroad  be  taxed  in  Iowa? 

§  179.  Suppose  that  100  shares  of  the  above  raih-oad  are  owned 
by  Peter  Abbott,  a  resident  of  New  York.  May  he  be  taxed  on 
those  shares  in  New  York? 

Suppose  the  shares  are  kept  in  a  safety  deposit  vault  in  Phila- 
delpi^-a,  may  he  be  taxed  on  them  by  the  state  of  Pennsylvania? 
May  he  be  taxed  on  them  by  the  state  of  Illinois? 

§  §  181-85.  John  Smith  was  a  citizen  and  resident  of  New  York. 
He  died   leaving  the  following  property: 

1.  500  acres  of  land  in  New  York. 

2.  1000  acres  of  land  in  Montana. 

3.  A  claim  for  $10,000  against  William  Conway,  a  citizen  of 
Illinois. 


APPENDIX 

4,  100  shares  of  stock  in  a  Maine  corporation,  the  stock  certi- 
ficate being  kept  in  Boston,  Mass. 

5.  10  bonds  of  a  New  Jei'sey  corporation  payable  to  bearer  and 
kept  in  New  York. 

Assuming  that  each  state  wishes  to  collect  all  possible  inheri- 
tance taxes,  what  states  can  tax  with  respect  to  the  above  proper- 
ties ? 

§  186.  Could  Congress  constitutionally  impose  a  tax  to  raise 
money  to  establish  a  central  bank  under  government  supervision? 

§  192.  During  a  fire  which  burnt  most  of  a  city,  five  citizens 
voluntarily  advanced  a  large  amount  of  money  to  the  authorities  to 
buy  food,  clothing,  etc.,  for  the  fire  sufferers.  May  the  state  properly 
appropriate  money  to  recompense  the  citizens  making  this  contribu- 
tion? 

§  196.  May  a  city  raise  money  by  a  tax  levied  on  all  real 
property  in  the  city  and  then  use  the  money  to  build  public  golf 
links  in  one  extreme  corner  of  the  municipality  where  it  was  prac- 
tically inaccessible  to   most   of  the   inhabitants? 

§§  199,  200.  A  city  ordered  a  certain  street  to  be  asphalted  and 
provided  that  the  cost  of  asphalting  should  be  borne  by  the  abutters 
in  proportion  to  their  f rentage  on  the  street.  One  of  the  abutters 
objected  to  the  assessment  on  the  ground  that  his  lot  was  not  used 
by  him;  a  second  objected  on  the  gi-ound  that  his  house  faced  on 
another  street  and  his  sole  driveway  was  from  that  other  side;  a 
third  objected  on  the  ground  that  his  laud  was  a  high  knoll,  rocky, 
and  impossible  of  access  from  the  street  asphalted;  a  fourth  objected 
on  the  ground  that  no  provision  was  made  for  a  proportionate  assess- 
ment upon  neighboring  abutters  on  intersecting  streets  who  were  also 
benefitted.    Which  if  any  of  the  above  objections  are  sound? 

§  205.  Would  a  graduated  tax  of  1%  on  real  estate  worth  less 
than  $75  an  acre  to  20%  on  real  estate  worth  more  than  $100,000  an 
acre  be  constitutional? 

§  209.  May  the  state  take  by  eminent  domain  the  house  and 
land  of  a  private  citizen  for  the  purpose  of  converting  it  into  a  home 
for  disabled  firemen? 

§  211.  May  the  state  of  New  York  condemn  the  power  plants 
and  other  factories  using  Niagara  Falls  in  order  to  preserve  the 
natural  beauty  of  the  falls? 

§  213.  A  state  made  a  contract  with  John  Dale  giving  him  the 
exclusive  right  for  5  years  to  supply  coal  to  the  state  institutions  at 
$3.00  a  ton.     The  constitution  of  the  state  forbade  the  state  to  pass 


402  CONSTITUTIONAL  LAW 

nny  l;nv  impairing;  the  obligation  of  a  contract.     Is  there  any  way 
in  which  the  state  maj'  terminate  the  contract  with  Dale? 

§  215.  Abbott  owned  a  piece  of  waste  land;  he  conveyed  to  Smith 
the  right  to  dump  ashes  on  the  land  for  ten  years.  Three  years  later 
the  H.  &  N.  R.  R.  Co.  condemned  the  land  for  a  station  site.  The 
company  paid  Abbott  for  his  interest  in  the  property.  Smith  claimed 
that  he  was  also  entitled  to  be  recompensed  for  his  right.  Is  his 
claim  sound? 

§216.  Immediately  below  Abbott's  lot  in  the  above  mentioned 
case  was  a  lot  belonging  to  Brown.  The  railroad  company  began  to 
fill  in  the  Abbott  lot.  Brown's  lot  was  so  much  lower  that  the  filling 
material  kept  working  down  onto  his  lot  and  finally  encroached  on 
it  for  a  width  of  about  twenty  feet.  Brown  claimed  that  this 
amounted  to  a  taking  of  his  property.  The  railroad  claimed  it  did 
not  because  Brown  could  have  kept  off  the  gravel  by  a  wall.  Which 
is  right  ? 

§  217.  Suppose  Brown  had  a  house  on  this  lot  and  the  clanging 
of  the  engine  bells,  and  the  whistle  and  the  noise  of  the  trains  so 
seriously  disturbed  the  quiet  of  the  neighborhood  that  his  tenants 
left  and  he  could  not  rent  his  house.  Would  this  amount  to  a 
taking  of  property  by  the  railroad? 

§  219.  Jones  lived  on  First  street  and  Smith  on  Maple  avenue 
which  crossed  First  street  at  right  angles.  A  street  railway  com- 
pany obtained  a  franchise  to  raise  the  grade  of  First  street  and  did 
so.  Opposite  Jones'  house  the  grade  was  raised  about  15  feet,  thus 
putting  Jones'  lot  in  a  much  poorer  position.  To  keep  Maple  avenue 
on  the  same  grade,  the  city  raised  it;  and  at  a  point  opposite  Smith's 
house  it  was  15  feet  above  the  old  level.  Has  either  Jones  or  Smith 
a  right  of  action  for  deprivation  of  property  rights  and  if  so,  what 
are  the  rights  of  which  they  are  deprived? 

§  220.  Suppose  the  grades  of  First  street  and  Maple  avenue  in 
the  last  case  had  not  been  touched  but  street  car  lines  had  been  put 
on  each.    Would  Jones  or  Smith  have  had  a  cause  of  action? 

§  222.  A  farmer  had  two  tracts  of  land,  one  on  either  side  of 
the  highway.  The  tract  to  the  west  of  the  road  was  farm  land  and 
his  house  and  bam  were  there.  Tlie  tract  to  the  east  was  50  acres 
of  woodland.  A  railroad  condemned  a  strip  one  hundred  feet  wide 
through  the  woodland  near  the  highway.  The  value  of  the  land 
actually  taken  was  $100;  the  railroad  put  in  a  road  to  the  rest  of 
the  woodland  that  bettered  it  to  the  extent  of  $25.  The  noise  and 


APPENDIX  403 

nuisance  of  the  passage  of  the  trains  near  the  lot  on  the  west  side 
damaged  it  $200.  How  much  may  be  recovered  from  the  railroad? 
§  225.  Suppose  the  railroad  in  the  last  case  had  begun  to  grade 
their  right  of  way  through  the  woodland  before  they  had  secured 
the  title  thereto.    What  remedy  would  the  owner  have  had? 

Would  he  be  entitled  under  the  Constitution,  in  the  event  of 
condemnation  proceedings,  to  have  the  value  of  the  land  determined 
by  the  verdict  of  a  jury? 

§  227.  A  state  supreme  court  decided  that  by  the  law  of  the 
state,  interest  up  to  10%  was  not  illegal  under  the  usury  statute. 
On  the  strength  of  that  decision,  Smith  loaned  Jones  money  at  10% 
interest.  Later  Smith  sued  Jones  on  the  contract.  The  supreme 
court  said  that  the  old  decision  was  wrong  and  that  the  state  law 
properly  interpreted  forbade  over  7%  interest.  Smith  claimed  that 
the  decision  was  unconstitutional  because  it  violated  the  obligation 
of  his  contract  made  on  the  strength  of  the  old  decision.  Is  his 
contention  right? 

§  228.  Herbert  Smith  and  Alice  Hall  were  mamed  in  1880.  At 
that  time  the  law  of  the  state  allowed  divorce  only  for  adialtery  and 
desertion.  In  1890  the  law  was  changed  by  allowing  divorce  for  in- 
compatibility of  temperament  and  Herbert  attempted  to  get  a  di- 
vorce from  Alice  on  that  ground.  She  contended  that  so  far  as  the 
statute  related  to  marriage  contracts  made  before  1890  it  was  uncon- 
stutional  as  impairing  the  obligation  of  a  contract.    Is  she  right? 

§  230.  Could  the  state  constitutionally  revoke  the  charter  of  a 
street  railway  company  Avhich  contained  no  clause  authorizing  the 
state  so  to  revoke? 

§  231.  Could  a  state  constitutionally  pass  a  bankruptcy  act  in 
1890  providing  that  an  insolvent  debtor  could  surrender  all  his 
property  to  a  trustee  for  his  creditors  and  thereby  discharge  the 
debts   and  make  the   statute   cover  a   debt   contracted   in   1887? 

§233.  The  city  of  Salt  Springs  issued  $1,000,000  of  bonds  to 
build  a  sewer  system.  At  that  time  the  law  of  the  state  provided 
that  all  real  and  personal  property  in  the  city  could  be  taxed  and  that 
the  tax  rate  might  be  as  high  as  5%  of  the  assessed  valuation. 
Just  before  the  bonds  matured,  the  law  was  changed  allowing  tax- 
ation only  on  personal  property  and  limiting  it  to  1-2%  of  the 
assessed  valuation.     Is  this  law  constitutional  as  to  the  bondholders? 

§234.  Suppose  in  an  attempt  to  evade  the  payment  of  the 
bonds  in  the  last  case,  the  city  of  Salt  Springs  had  been  abolished 


404  CONSTITUTIONAL  LAW 

by  the  legislature  and  its  temtory  annexed  to  three  adjacent  cities. 
What  relief,  if  any,  would  the  bondholders  have  had? 

§  235.  Suppose  in  the  last  mentioned  bond  case,  at  the  time  the 
bonds  wei'e  issued  an  action  to  enforce  them  could  be  brought  at 
any  time  within  seven  years  after  they  matured,  but  that  when  the 
bonds  matured  the  time  had  been  cut  to  five  years,  would  this  change 
be   unconstitutional? 

§  236.  May  special  pri\'ileges  given  to  a  corporation  in  its  char- 
ter, such  as  fixing  the  rate  of  taxation,  freedom  from  supervision, 
etc.,  be  afterward  revoked  by  the  legislature? 

§  239.  The  Bayside  corporation  had  a  clause  in  its  charter  that 
it  should  never  be  taxed  at  over  1%  of  its  assessed  valuation.  The 
Riverview  corporation  had  a  clause  in  its  charter  exempting  it  from 
all  taxation.  A  special  act  of  the  legislature  authorized  the  two  cor- 
porations to  convey  all  their  "property,  franchises  and  rights"  to  a 
new  corporation,  the  Bayview  Co.  They  did  so.  The  general  rate  of 
taxation  in  the  state  is  2%.  At  what  rate  may  the  property  of  the 
Bayview  Co.  be  taxed? 

§  241.  The  charter  of  the  P.  L.  &  T.  R.  R.  Co.  provided  that  the 
kinds  of  passengers  it  should  carry  should  not  be  subject  to  control 
by  the  state.  Later  during  an  epidemic  of  smallpox  the  state  for- 
bade all  railroads  to  carry  smallpox  patients  or  corpses  on  their 
trains.     Was  this  statute  operative  as  to  the  P.  L.  &  T.  R.  R.? 

§  243.  Koch,  the  owner  of  a  distillery  in  Kansas,  made  a  con- 
tract with  Hill  whereby  Hill  agreed  to  act,  and  Koch  to  hire  him,  as 
selling  agent  for  Koch  for  five  years  in  the  state.  The  following 
year  Kansas  passed  a  law  forbidding  the  sale  of  liquor  in  the  state. 
Hill  contended  that  the  law  was  unconstitutional  as  impairing  his 
contract  with  Koch,     Is  his  contention  sound? 

Would  the  result  be  the  same  if  the  state  had,  subsequent  to  the 
contract,  provided  that  all  contracts  for  more  than  two  years  em- 
plojnnent  should  be  void  unless  attested  and  this  contract  was  not 
attested? 

§  246.  Jones,  a  citizen  of  Illinois,  while  in  New  York  executed 
his  promissory  note  to  Peters,  a  citizen  of  New  York.  The  note  was 
payable  in  New  York.  Jones  returned  to  Illinois  before  the  note 
was  due,  and  went  through  bankruptcy  under  the  Illinois  bank- 
ruptcy law  which  was  in  force  when  he  made  the  note  and  obtained 
his  discharge  in  bankruptcy.  Would  this  discharge  bar  Peters'  claim 
on  the  note? 


APPENDIX  405 

Would  it  make  any  difference  if  the  note  had  been  made  and 
was  payable  in  Illinois'? 

§248.  Hill  gave  his  note  to  Lynch  for  ''$10,000  with  interest'* 
but  the  rate  was  not  specified.  The  legal  rate  was  at  that  time  6%. 
Subsequently  the  legislature  increased  the  rate  to  8%  and  made  it 
applicable  to  all  then  existing  notes.  Is  the  law  void  as  to  Hill  as 
impairing  the  obligation  of  the  contract? 

§252.  Which  of  the  following  acts  (1)  may  be  done  by  the 
states  only  if  Congress  has  not  acted  (2)  even  though  Congress 
has  acted  (3)  not  done  by  the  states  even  though  Congress  has  not 
acted? 

(1)  Provide  for  the  coinage  of  money, 

(2)  Make  treaties  with  foreign  powers, 

(3)  Provide  for  the  naturalization  of  foreigners. 

(4)  Regulate  the  speed  at  which  interstate  trains  may  run  in 
towns. 

(6)  Provide  for  discharges  in  bankruptcy. 

(7)  Provide  for  quai-antining  against  infectious  diseases. 

§  255.  May  Congress  pass  a  statute  forbidding  the  sale  or  stor- 
ing of  gunpowder  in  large  cities? 

§  257.  Under  what  clause  of  the  constitution  did  Congress  have 
the  right  to  acquire  the  Philippines? 

Suppose  the  President  and  Senate  execute  a  treaty  with  Nicara- 
gua declaring  it  to  be  United  States  teiTitory,  could  it  be  shown  in 
an  action  at  law  involving  this  question  that  in  fact  it  was  not 
United  States  territory? 

§  261.  Into  what  classes  may  the  territoiy  over  which  the  United 
States  government  may  exercise  authority  be  divided? 

§  262.  Could  a  person  be  constitutionally  convicted  of  a  crime 
by  less  than  a  unanimous  jury  in  the  territory  of  Alaska? 

Could  federal  judges  be  appointed  for  less  than  life  in  that  ter- 
ritory ? 

§  2'64.     Could  Congress  in  the  Philippines : 

(1)  Establish  a  state  religion  and  prohibit  any  other? 

(2)  Provide  for  trials  by  a  jury  of  less  than  12  men? 

(3)  Levy  import  duties  different  from  those  prevailing  in  the 
United  States? 

(4)  Provide  for  punishment  of  crimes  by  burning  at  the  stake? 
§  265.    If  the  United  States  should  go  to  war  with  Mexico  and 

temporarily  occupy  part  of  its   ten'itory,   which   of  the   acts  men- 


406  CONSTITUTIONAL  LAW 

tioncd  in  the  last  question  could  be  constitutionally  provided  for  by 
Congress? 

§  276.  Suppose  that  the  United  States  government  levied  an  ex- 
cise tax  upon  liquor  of  a  certain  description  and  the  only  liquor  of 
that  kind  in  the  country  was  made  for  the  purpose  of  exportation, 
would  this  be  unconstitutional  as  a  tax  on  exports'? 

§  277.  Could  the  state  of  Texas  constitutionally  provide  for  a 
tax  of  ten  cents  a  head  on  all  cattle  driven  in  from  Mexico  in  order 
to  provide  a  fund  to  pay  for  the  examination  of  such  cattle  to  see 
that  they  were  not  diseased? 

§  280.  Could  Congress,  under  the  power  to  regulate  interstate 
commerce,  forbid  the  employment  of  women  in  faetoiies  where  arti- 
cles were  manufactured  for  interstate  trade? 

§  281.  A  manufacturer  in  Chicago  hired  a  local  expressman  to 
take  a  load  of  machinery  to  a  Chicago  freight  station  to  be  carried 
to  St.  Louis.    Was  the  expressman  engaged  in  interstate  commerce? 

§  282.  Were  the  employees  in  the  manufacturer's  factory  in  the 
last  case  who  brought  the  goods  from  the  different  parts  of  the 
factory  to  the  shipping  room  engaged  in  interstate  commerce? 

§  282.  Suppose  the  goods  above  mentioned  had  been  put  on  the 
train  and  started  for  St.  Louis,  and  had  then  been  stopped  by  the 
consignor  and  the  car  side-tracked.  Would  the  car  while  so  side- 
tracked be  engaged  in  interstate  commerce? 

§  286.  May  a  state  impose  a  tax  of  one  cent  a  messag'e  upon 
all  telegraph  messages  sent  in  the  state? 

§  290.  May  a  state  impose  a  tax  per  pole  upon  all  telegraph  and 
telephone  poles  placed  on  public  highways? 

§  293.     How  far  may  a  state  regulate  freight  and  passenger  rates  ? 

§  295.  May  a  state  require  that  interstate  trains  be  heated  to  a 
certain  fixed  temperature  while  in  the  state? 

§  §  297,  298.  To  what  extent  may  a  state  forbid  the  importation 
ajid  sale  of  intoxicating  liquor? 

§  300.  Would  an  act  of  Congress  providing  for  the  condemna- 
tion and  nationalization  of  all  the  existing  railroad  and  telegraph 
lines  be  constitutional? 

§  301.  How  far  may  Congress  permit  a  state  to  determine  for 
itself  what  articles  of  interstate  commerce  it  will  allow  to  be  brought 
in  the  state? 

§  302.  A  power  company  built  a  dam  on  the  Wisconsin  river, 
making  a  long  lake  above  the  dam :  the  Wisconsin  river  flows  into 
the  Mississippi  and  is  navigable  below  the  dam.     Would  a  steamer 


APPENDIX  407 

navigating  above  'the  dam  be  within  the  maritime  jurisdiction  of  tha 
United  States? 

§  303.  Would  it  make  any  difCerenee  if  in  the  last  ease  there  was 
a  canal  around  the  dam? 

§  307.  Could  a  state  constitutionally  issue  bonds  whose  coupons 
were  payable  to  bearer  and  receivable  at  their  face  value  for  all 
state  taxes'? 

§  309.  Could  a  state  constitutionally  pass  a  law  making  void 
contracts  that  called  for  payment  in  gold? 

§  315.  Would  a  Federal  income  tax  that  increased  as  the  in- 
comes taxed  grew  lai'ger  be  in  violation  of  the  provision  that  all 
taxes  "shall  be  uniform?" 

§  321.  Could  Congress  constitutionally  provide  as  a  part  of  its 
postal  system  for  the  carrying  of  all  articles  weighing  not  over  2,000 
pounds  ? 

§  §  326,  327.  Suppose  that  the  United  States  made  a  treaty  with 
Great  Britain  by  which  it  was  provided  (1)  that  the  eastern  half  of 
Maine  should  be  regarded  as  British  territory,  (2)  that  citizens  of 
Great  Britain  might  acquire  land  in  any  of  the  United  States,  and 
that  the  state  of  Maine  had  statutes  (1)  that  defined  the  boundaries 
of  the  state  (2)  that  forbade  foreigners  to  acquire  land.  Would 
either  of  these  be  affected  by  the  treaty? 

§  330.  Could  Congress  in  time  of  war  constitutionally  declare 
confiscated  all  property  found  within  the  territory  of  the  enemy  even 
though  the  property  belonged  to  citizens  of  the  United  States? 

§  332.  Can  the  President  in  time  of  war  constitutionally  suspend 
the  writ  of  habeas  corpus  in  a  part  of  the  country  where  the  reg- 
ular courts  are  still  open? 

§  337.  A  state  bankruptcy  statute  provided  that  the  property  of 
an  insolvent  debtor  should  be  used  first  in  the  payment  of  the  claims 
of  local  creditors  and  only  the  balance,  if  any,  should  be  devoted  to 
the  payment  of  creditors  from  other  states.  Is  the  statute  consti- 
tutional ? 

§  339.  Suppose  the  statute  last  mentioned  also  provided  that  if 
a  non-resident  creditor  wished  to  present  his  claim  he  must  file  a 
bond  to  pay  costs  in  case  the  claim  was  rejected,  no  such  require- 
ment being  made  as  to  local  creditors.  Would  such  a  provision  be 
constitutional? 

§343.  The  states  of  New  York  and  Connecticut  having  a  dis- 
pute as  to  their  boundaries  made  an  agreement  as  to  where  they 
should  be  fixed.    By  this  agreement  the  land  of  Jones,  who  had  al- 


408  CONSTITUTIONAL  LAW 

Avays  claimed  to  be  a  resident  of  Connecticut  was  allotted  to  New 
Ycnk.  lie  claimed  that  New  York  had  no  jurisdiction  over  him  be- 
cause Confrress  had  not  consented  to  the  agreement  and  the  Consti- 
tution provides  that  **no  state  sliall,  without  consent  of  Congress 
.  .  .  enter  into  any  agreement  with  another  state."  Is  his  con- 
tention sound? 

§  347.  Maj'  a  state  levy  an  income  tax  which  would  cover  the 
salary  of  a  Federal  officer? 

§  348.  May  it  collect  an  inheritance  tax  upon  the  property  of  a 
deceased  Federal  officer? 

§  351.  Into  what  two  classes  maj-  the  judicial  powers  of  the 
Federal  Constitution  be  divided? 

§  354.    How  are  the  various  Federal  courts  at  present  organized  ? 

§  357.  If  a  laAvsuit  between  two  citizens  of  the  same  state  involves 
several  questions,  only  one  of  which  is  a  Federal  question,  how  much 
of  the  case  will  be  decided  by  the  Federal  court? 

§  358.  Suppose  the  case  has  already  been  decided  in  the  state 
Supreme  court  and  it  is  then  removed  to  the  Federal  court,  what 
questions  may  be  reviewed  by  the  latter  court? 

§  §  365,  366,  367.  In  what  cases  will  the  Federal  courts  follow 
the  decisions  of  the  state  courts  as  to  what  the  local  law  is  and  in 
what  cases  will  they  refuse  so  to  do? 

§  378.  A  state  passed  a  law  requiring  its  insurance  commission- 
ers to  exclude  from  the  state  certain  insurance  companies  that  had 
not  complied  with  the  state  statute  as  to  rates  of  premiums.  The 
insurance  companies  alleged  that  the  state  rates  were  unconstitu- 
tional and  asked  a  Federal  court  to  enjoin  the  insurance  commis- 
sioners from  taking  steps  to  exclude  them  from  the  state.  Should 
the  injunction  be  refused  on  the  ground  that  it  is  a  suit  against  the 
state  and  so  forbidden  by  the  constitution? 


TABLE  OF  CASES. 


Aclnirv.  United    States.    208   U. 

S.    IGl 147,;J0'] 

lAaams  V.  New   York,   192   U.   S, 

585   157 

Adams  Express  Co,  v.  Ohio,  IGG 

U.  S.  185 1G2,  109 

Addyston    Pipe    Co.    v.    United 

States,  175  U.  S.  211 303 

lAikens  v.  Wisconsin,    195    U.    S 

194 14S 

iAllgeyer  v.  Louisiana,  1G5  U.   S. 

578  135 

American  Insurance  Co.  v.  Can- 
ter, 1  Pet.  511,  .542 

2G0,  261,  267 

lAmerican    Refrigerator    Co.    v. 

j  Hall,  174  U.  S.  70 160 

JAmerican   Sugar  Co.  v.   Louisi- 

!  ana,    179  U.    S.  89 195 

Applicants   for   License,   In   re, 

'  143    N.    C.    1 21 

jArndt  v.  Griggs,  134  U.  S.  316.113 
!  Ashley  V.  Ryan,  153  U.  S.  436.. 298 
i  Attorney-General    v.    Williams, 

!  174   Mass.   476 205 

j  Auditor  v.  Railroad,  6  Kan.  500 

22 

[  Austin  V.  Tennessee,    179   U.    S. 
!  343    280 

I 

i  Bacon    v.    Tax    Commissioners, 

126    Mich,   22 167 

Bailey   v.   Alabama,   219   U,    S. 

219    90 


Baldwin   v,   Franks,   120  U,   S. 

678     327 

V.Hale,    1   Wall,  223 247 

Ballard    v.    Thomas,    19   Gratt 

(Va.)    14   22 

Bank  of  Commerce  v.   Tennes- 
see,   163   U.    S.   416 242 

Bank  of  United  States  v.  Don- 

nally,   8  Pet.   361 218 

Barbier  v.  Connolly,  113  U.    S. 

27     136 

Barron    v.    Baltimore,     7     Pet. 

243     54 

Bauman  v.  Ross,  167  U.  S.  548  ' 

216,    218 

Beers  v.  Arkansas,  20  How,  527.. .367 

Bell  V.  Bell,  181  U,.  S.  175 113 

Bell's     Gap     Railroad     Co.     v. 

Pennsylvania,    134   U.    S. 

232     193 

Benner  v.  Porter,  9  How.  235.267 
Bertholf  v.   O'Reilly,   74  N.   Y. 

509    2.3,    44 

Beseman  v.  Pennsylvania  Rail- 
road, 50  N.  J.  L.  235... 210 
Besette  v.  People,  193  111.  334, 144 
Billings   V.   Illinois,    188   U,    S, 

97     197 

Binghamton  Bridge,  The,  3  Wall, 

51     234 

Birdsoug,  In  re,  39  Fed,  599. .  .108 
Black  V.  State,  113  Wis,  205..  197 
Blackburn   v.   Portland    Mining 

Co.,   175  U.  S.  571 357 


409 


410 


TABLE  OF  CASES 


Blackstone  v.  INIiller,  1S8  U.  S. 

ISO     172 

Blair  v.  Chicago.  201  U.  S.  400.237 
I'.lake    V.    McCluiig.    172    U.    S. 

239    33S,   341 

Board  of  Educatlou  v.  Blodgett, 

155    111.    441 155 

Board  of   Excise   v.   Merchant, 

103   N.   Y.    143 157 

Bohm  V.  MetroiX)litan   Railway 

Co.,    129   N.    Y.   57G 213 

Eolin  V.  Nebraska,  176  U.S.  83.273 
Boom     Company    v.    Patterson, 

98   U.    S.   403 215 

Booth    V.    Illinois,    184    U.    S. 

425     112 

Bowman   v.   C.   &   N.    Railway 

Co.,  125  U.  S.  465 200 

Boyd  V.  Thayer,  143  U.  S.  135.  75 
V.  United  States,  116  U.  S. 

616    100,    102 

Brewer  Brick    Co.    v.    Brewer, 

62   Me.   62 181 

Brimmer  v.  Rebman,  138  U.  S. 

78     2S2 

Briscoe  v.   Bank   of   Kentucky, 

II  Pet.    257 309 

Bronson,   Matter  of,   150  N.  Y. 

1     172-3 

Bronson  v.  Kinzie.  1  How.  311..229 

V.  Rodes.  7  Wall.  229 313 

Brown   v.   Houston,    114   U.    S. 

522     292 

V.     Maryland,     12     Wheat. 

419     276 

Buck  V.  Beach.  206  U.  S.  392..  164 
Buffalo  East  Side  R.  R.  Co.  v. 

Buffalo  Street  R.  R.  Co., 

III  N.  Y.   132 243 

Burlington  v.  Beasley,  94  U.  S. 

310     1"8 

Burrus,  In  re.  136  U.  S.  586... 358 
Butchers  Union  Co.  v.  Crescent 

City  Co.,  Ill  U.  S.  746.  .241 
Buttfield  V.  Stranahan,  192  U. 

S.   470    122 


('alder  v.  Bull,  3  Dallas  386...  94 
Caliloruia     v .    Central     Pacific 
Railroad   Co.,    127   U.    S. 

I    294,  321,  346 

Callau    V.    Wilson,    127    U.    S. 

540     266 

Campbell    v,    Sherman,   35  Wis. 

103     47 

Canada  Southern  Railway  Co. 
V.  Gebhard,  109  U.  S. 
527     248 

Capital  Traction  Co.  v.  Hof,  174 

U.    S.    1 105 

Carter's  Case,  96  Va.  791 20 

Carter  v,  Texas,  177  U.  S.  442.130 

Central    Land    Co.    v.    Laidley, 

159   U.    S.    103 125 

Charles  River  Bridge  v.  War- 
ren Bridge,  11  Peters 
420    235 

Charlotte,  C.  &  A.  R.  R.  Co.  v. 

Gibbes,  142  U.  S.  386...  152 

Chicago,    B.    &    Q.    Railway   v. 

Babcock.  204  U.  S.  585..  126 
V.  Chicago,  166  U.  S.  226.. 200 

Chicago,   etc.,  Railway  v.  Min- 
nesota,   1.34   U.    S.   418..  127 
V.  Sturm,  174  U.  S.  710...  113 

Chicago,  R.  I.  &  P.  Ry.  v.  Zer- 

necke,  183  U.  S.  582 152' 

Chicago    T.    Taylor,    125    U.    S. 

161    217 

Chirac  v.  Chirac.  2  Wheat.  259.  .74 

Chisholm    v.    Georgia,    2    Dall. 

419    366 

Civil  Rights  Cases,  109  U.  S.  3, 

II    57,   62 

Clark  V.  Miller,  54  N.  Y.  528. .  47 

V.  Nash,  198  U.  S.  361.... 20i 
Cleveland,    C.    C.    &    St.    Louis 

Railway   v.    Illinois,    177 

U.    S.    514 297 

Clinton      v.      Englebrecht,      13 

Wall.   434    261 

Clyatt  V.  United  States,  197  U. 

S.  207 57,  88 


CONSTITUTIONAL    LAW 


411 


Coe  V.  Errol,  116  U.  S.  517.287,  292 
Collector    v.    Day,    11    Wallace 

113    348 

Commonwealth  v.  Boston  Ad- 
vertising  Co.,   188  Mass. 

348     144 

V.  King,  150  Mass.  221 306 

V.   Sisson,  189  Mass.  247..  119 
V.    Smith,    4    Binn,     (Pa.) 

117    38 

V.  Wyman,   12  Cush.  237..  95 
Connolly  v.   Union   Sewer  Pipe 
Co.,  184  U.  S.  540     .... 

137,  192,    196 

Converse,  In  re,  137  U.  S.  624.125 
Cooley  V.  Board  of  Wardens,  12 

How.  299    288 

Cooper,  Matter  of,  22  N.  Y.  67...  21 
Corfield  v.  Coryell,  4  Wash.  C. 

C.  371    337,  339 

Cornell    v.    Coyne,    192    U.    S. 

419    281 

Covington  Bridge  Co.  v.  Ken- 
tucky, 154  U.  S.  204 284 

Craig  V.  Missouri,  4  Pet.  410.. 309 
Crutcher  v.  Ky.,  141  U.  S.  47.. 298 
Cummings  v.  Missouri,  4  Wall. 

277   92,  99 

Cunnius     v.      Reading     School 

Dist.,  198  U.  S.  455 113 

Daniel  Ball,  The,  10  Wall.  557. 

286,  305 

Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  518 .224 

Davidson   v.    New    Orleans,   96 

U.  S.  97 120,  133 

Day,  In  re,  181  111.  73 21 

Debs,  In  re,  158  U.  S.  564 20 

Delameter     v.     South    Dakota, 

205   U.   S.  93 300 

Delaware,  L.  &  W.  R.  R.  Co.  v. 
Pennsylvania,  198  tJ.  S. 
341    159 

De  Lima  v.  Bidwell,  182  U.  S. 

1    264 

S— 28 


Detroit  v.  Street  Railway  Co., 

184   U.   S.   368 234 

Dickey    v.    Maysfield   Turnpike 

Co.,  7  Dana  113 321 

Dooley  v.  United  States,  183  U. 

S.    151    280 

Dorr  V.  United  States,   195   U. 

S.   138 261,  270 

Douglass   V.    Pike   County,    101 

U.    S.    677 ,364 

Downes  v.   Bidwell,    182   U.    S. 

244    205,   266,   270 

Drayton,  Ex  parte,  153  Fed.  986.  .90 
Dred     Scott    v.     Sandford,     19 

How.  393 68,  75,  87 

Eaton  V.  Boston,  etc.,  Railroad, 

51   N.   H.  504 210 

Eilenbecker  v.  Plymouth 

County,  134  U.  S.  31 115 

Elk  V,  Wilkins,  112  U.  S.  94...  73 

Enston,    Matter   of,    113    N.    Y. 

174    167 

Fairbanks     v.     United     States, 

181  U.   S.  283 281,  318 

Fairchild  v.  St.  Paul,  46  Minn. 

540    206 

Fall  Brook  Irrigation  District 
V.  Bradley,  164  U.  S.  112 
123,  126,  204 

Fargo  V.  Hart,  193  U.  S.  490  .163 

Farist   Steel  Co.  v.  Bridgeport, 

60  Conn.  278    205 

Farris   v.    Vannier,    6   Dakota, 

186    188 

Fletcher  v.  Peck,  6  Cranch.  87.223 

Florida  Central  Ry.  Co.  v.  Rey- 
nolds, 183  U.  S.  471.... 181 

Fong     Yue      Ting     v.     United 

States,  149  U.  S.  698 325 

Forsyth  v.  Hammond,    166    U. 

S.  506   123,  184 

Forsythe  v.  Hammond,  142  Ind. 

505    19 


4V2 


TABLE  OF  CASES 


Fort  Leavenworth  Railroad  Co. 

V.  Lowe,  114  U.  S.  525.. 329 

Fox  V.  MeDouald,  101  Ala.  51..  21 

Franklin  Needle  Co.  v.  Frank- 
lin, 65  N.   H.  177 181 

French  v.  Barber  Asphalt  Co., 

181  U.  S.  324 190 

Galway    v.    Elevated    Railway, 

128  N.   Y.   132 218 

Garnett,  In  re,  141  U.  S.  1.306,307 
Garrett    v.    Elevated     Ry.,     79 

Md.  277    214 

Geer  v.  Connecticut,  161  U.  S. 

519    151,   301 

General  Oil  Co.  v.  Grain,  209  U. 

S.    211    287 

Geofroy  v.  Riggs,  133  U.  S.  258 

327 

Georgia  v.  Stanton,  6  Wall.  50.  41 
Gibbons  v.  Ogden,  9  Wheat  1 

251,  283 

Giles  V.  Harris,  189  U.  S.  475 

40,    80 

V.    Walker,    24    Q.    B.    D. 

656  153 

Gilman  v.  Philadelphia,  3  Wall. 

713 254 

Gonzales  v.    Williams,    192   U. 

S.  1  73 

Gordon    v.    Comes,    47    N.    Y. 

608    187 

Goshen  v.  Stonington,  4  Conn. 

209    155 

Grand  Rapids,  etc.,   R.   R.   Co. 

V.  Osborne,  193  U.  S.  17.  .151 
Green,  In  re,  134  U.  S.  377. . . .  78 
Green  v.  Commonwealth,  12  Al- 
len,   155 49 

Greene  v.  Biddle,  8  WTieat.  1..344 
Greenwood  v.  Marginal  Freight 

Co.,  105  U.   S.  13 245 

Gulf,  etc.,  Railroad  Co.  v.  Ellis, 

165  U.  S.  150 138 

Hagar  v.  Reclamation  District, 

111  U.  S.  701 121 


Hale  V.  Henkel,  201   U.  S.  43 

100,   101 

Hanley  v.  Kansas  City  South- 
ern Railway  Co.,  187  U. 
S.  617 296 

Hans  V.  Louisiana,   134   U.   S. 

1     370 

Harris  v.  People,  128  111.  585..  105 

Hawaii  v.  Mankichi,  190  U.  S. 

197     270 

Hawker  v.  New  York,  170  U.  S. 

189    98 

Head  V.  Amoskeag  Co.,  113  U.  S. 

9    151 

Heff,  Matter  of,  197  U.  S.  488.  .324 

Heine  v.  Levee  Commissioners, 

19   Wall.   655 231 

Hepburn   v.   Griswold,   8  Wall. 

603    312,314 

Hilton  V.  Merritt,  110  U.  S.  97 

123 

Hodges,  Ex  parte,  87  Cal.  162.  .153 

Holden   v.    Hardy,    169    U.    S. 

366    141 

Home    Ins.    Co.    v.    Morse,    20 

Wall.   445    150 

Home  Telephone  Co.  v.  Los  An- 
geles, 211  U.  S.  265 242 

Hooper  v.  Emery,  14  Me.  375 . .  176 

Houston  &  Texas  Railroad  Co. 

V.  Texas  177  U.  S.  66... 310 

Howard  v.  Illinois  Central  Rail- 
road Co.,  207  U.  S.  463 
258,  303 

Howes  V.   Maxwell,   157  Mass. 

333    152 

Hudson  Water  Co.  v.  McCarter, 

209  U.  S.  349 151 

Hurtado  v.  California,  110  U.  S. 

516    115,    133 

Huse  V.  Glover.   119  U.   S.  543 

283,    293 

Hyde  v.  Continental  Trust  Co., 

158  U.  S.  601   319 


CONSTITUTIONAL   LAW 


413 


Illinois  Central  Railway  Co.  v. 

Illinois,  146  U.  S.  387... 242 

Interstate  Commerce  Commis- 
sion V.  Brimson,  154  U.  S. 
447    18 

Iowa  Central  Railway  v.  Iowa, 

160  U.  S.  389 115 

Jackson,    Ex    parte,    96    U.    S. 

727    103 

James,  Matter  of,   144  N.  Y,  6 

167 

James   v.    Bowman,    190   U.    S. 

127    66 

Jones  V.  United  States,  137  U. 

S.   202    260 

Juilliard  v.  Greenman,  110  U.  S. 

421     316 

Kadderly  v.  Portland,  44  Ore. 

118    83 

Kansas  v.  Colorado,  185  U.  S. 

125    359 

V.  United  States,  204  U.  S. 

331     360 

Keller  v.  United  States,  213  U. 

S.    138    258 

Kelly   V.   Pittsburg,    104   U.    S. 

78  185 

Kemmler,  In  re,  136  U.  S.  436 

108 

Kemmler  v.  Durston,  119  N.  Y. 

569    108 

Kidd  V.  Pearson,  128  U.  S.  1  .  .299 
Kingman  v.  Brockton,  153  Mass. 

255    204 

Kirtland  v.  Hotchkiss,  100  U.  S. 

491     164 

Kneedler  v.  Lane,  45  Pa.  238  .  .332 
Knowlton  v.  Moore,   178  U.   S. 

41    197,  318 

Knoxville  Iron  Co.  v.  Harbi- 
son, 183  U.  S.  13 147 

Kohl   V.   United   States,  91    U. 

S.   367    253 


L'Hote  V.  New  Orleans,  177  U. 

S.   587    143 

Lane  County  v.  Oregon,  7  Wall. 

71    313 

Lawton    v.    Steele,    152    U.    S. 

133    118 

Leffingwell  v.  WaiTen,  2  Black 

599    364 

Legal   Tender  Cases,   12  Wall. 

457    254,315 

Lehew   v.    Brummell,    103   Mo. 

546  143 

Leisy    v.    Hardin,    135    U.    S. 

100    299 

License    Tax    Cases,    5    Wall. 

462  318 

Lincoln  Co.   v.  Luning,   133  U. 

S.   529    369 

Lindsay  v.  Montana  Fed.  of  La- 
bor,  37   Mont.   264 84 

Litchfield  v.  Vernon,  41   N.  Y. 

123    187 

Loan  Association  v.  Topeka,  20 

Wall.  655 175,178,180 

Lochner  v.  New  York,  198  U. 

S.  45  141,147 

Loewe  V.  Lawlor,  208  U.  S.  274 

.303 

Logan  V.  United  States,  144  U. 

S.  263   254 

Loney,  In  re,  134  U.  S.  372... 347 

Long  Island  Water  Co.  v.  Brook- 
lyn,  166  U.  S.  685 

206,  207,   219 

Los  Angeles  v.  Los  Angeles  Wa- 
ter Co.,   177  U.  S.  558.. 234 

Lottery  Case,  188  U.  S.  321. . .  .256 

Loughborough      y.      Blake,      5 

Wheat.  317   264 

Louisiana  v.  Jumel,   107  U.   S. 

711    372 

Louisville  &  Jeffersonville  Fer- 
ry Co.  V.  Kentucky,  188 
U.    S.  385 159 


414 


TABLE  OF  CASES 


Louisville  &  Nashville  R.  R.  Co. 

V.    Keutueky,    161    U.    S. 

677     242 

V.    Kentucky,    183    U.    S. 

503    126 

Lowell  V.  City  of  Boston,  111 

Mass.    454 177 

Luther  V.  Borden,  7  How.  1.  .40,83 

McCall  V.  California,  136  U.  S. 

104    291 

McCardle,    Ex   parte,    7    Wall. 

506    353 

McCray  v.   United   States,   195 

U.    S.   27 198,256 

McCrea  v.  Roberts,  89  Md.  238 

19 

McCulloch      V.      Maryland,      4 

Wheat.  316  251,311 

McFaddin  v.  Evans-Snider-Buel 

Co.,  185  U.  S.  505 154 

McGahey  v.  Virginia,  135  U.  S. 

662    233 

McPherson,  Matter  of,   104  N. 

Y.  306 193 

Magoun  v.  Illinois  Trust  &  Sav- 
ings    Bank,     170    U.     S. 

283    197 

Maine  v.  Grand  Trunk  Rail- 
road Co.,  142  U.  S.  217.. 294 
Manigault    v.    Springs,    199    U. 

S.   473    243 

Marbury  v.  Madison,  1  Cranch 

(U.   S.)    137 34 

Marx  Co.  v.  Watson,  168  Mo. 

133    84 

Maxwell    v.    Dow,    176    U.    S. 

581    115 

May  v.  New  Orleans,  178  U.  S. 

496    278 

Maynard  v.  Hill,  125  U.  S.  190 

145,  222 

Mechanics'  Savings  Bank  v.  Al- 

Kfn,  28  Conn.  97   154 

Meriwether  v.  Garrett,  102  U. 

5.   472    232 


Merriam's  Estate,  In  re,  141  N. 

Y.   479 171 

Merrill  v.   Sherburne,  1  N.  H. 

199    16 

Merryman,    Ex    parte,    Taney 

246    333 

Metropolitan  Ins.  Co.  v.  New 
Orleans,  295  U.  S.  395, 
166 

Michigan    Central    Railway    v. 

Powers,  201  U.  S.  245  ..123 

Mighell    V.    Sultan    of    Johore, 

(1894)    1  Q.  B.  149 366 

Miller  v.  United  States,  11  Wal- 
lace 268  331 

Milligan,  Ex  parte,  4  Wall.  2 

332,  334 

Minor  v.  Happersett,  21  Wall. 

162    82 

Minot  V.   Winthrop,   162  Mass. 

113  198 

Mississippi  v.  Johnson,  4  Wall. 

475    43 

Missouri  v.  Illinois,  180  U.  S. 

208    359 

Missouri  Pacific  Ry.  Co.  v.  Ne- 
braska, 164  U.  S.  403 
200,  201 

Mitchell  v.  Clark,  110  U.  S.  633 

154 

Mobile   V.    Watson,    116   U.    S. 

289    232 

Monongahela  Co.  v.  United 
States,  148  U.  S.  312 
207,   304 

Morley  v.  Lake  Shore  Railway 

Co.,  146  U.  S.  162 222 

Mormon     Church     v.     United 

States,  136  U.  S.  1 261 

Mugler  V.  Kansas,  123  U.  S.  623 

142 

Muller    V.    Oregon,    208    U.    S. 

412   141,  156 

Munday  v.  Rahway,  43  N.  J.  L. 

338    22 


CONSTITUTIONAL   LAW 


415 


Murray  v.   Hoboken  Land  Oo., 

18  How.  272 102,  117 

National  Council  v.  State  Coun- 
cil, 203  U.  S.  151 139 

National  Mutual  Building,  etc., 
Ass'n  V.  Brahan,  193  U. 
S.  635   220 

Neely  V.  Henkel,  180  U.  S.  109.  .271 

New    Hampshire  v.    Louisiana, 

108  U.  S.  76 368 

New  Orleans  v.  Clark,  95  U.  S. 

644 154,  182 

V.  Houston,  119  U.  S.  265..  167 

New  Orleans  Gas  Co,  v.  Louisi-     . 
ana  Light  Co.,  115  U.  S. 
650,  672 234,  241 

New  Orleans  Waterworks  Co.  v. 
Louisiana  Sugar  Co.,  125 

U.  S.  18  220 

V.  Rivers,  115  U.  S.  674 234 

New  York,  etc.,  Ry.  v.  Bristol, 

151   U.   S.  556 152 

V.Miller,  202  U.  S.  584 160 

Newton   v.   Commissioners,   100 

U.  S.  548 241 

Nickerson  v.  Boston,  131  Mass. 

306     153 

Nishimura      Ekiu      v.     United 

States,  142  U.  S.  651 325 

North  Dakota  v.  Nelson  County, 

1  N.  D.  88 183 

Northern  Securities  Co.  v. 
United  States,  193  U.  S. 
197    302 

Norwalk  Street  Railroad's  Ap- 
peal, 69  Conn.  576 18 

Norwood  V.  Baker,  172  U.  S.  269 

121,  189,  190 

Oceanic  Nav.  Co.  v.  Stranahan, 

214  U.  S.  320 122 

Ogden  V.   Saunders,  12  Wheat. 

213    247 

Ohio  &  Mississippi  Railroad  Co. 

V.  Wheeler,  1  Black  28G..361 


Ohio  Oil  Co.  T.  Indiana,  177  U. 

S.  190  151 

Opinion   of  Justices,   14  Gray, 

614 26 

Opinion  of  Justices,  175  Mass. 

599 183 

Opinion    of    Justices,    103    Me. 

506    151 

Osborne  v.  United  States  Bank, 

9  Wheat,  738 371 

Otis  V.  Parker,  187  U.  S.  606..  137 

Pacific  Railroad  Removal  Cases, 

115  U.   S.   1 358 

Patapsco   Guano   Co.   v.    North 

Carolina,  171  U.  S.  345,. 282 
Paul   V,   Virginia,   8  Wall.   168 

74,   287 

Pearcy  v.  Stranahan,  205  U.  S. 

257     260 

Pembina   Oo.   v.   Pennsylvania, 

125  U.  S.  181 138,  298 

Pennoyer  v.  McConnaughy,  140 

U.   S.    1 372 

V.  Neff,  95  U.  S.  714 112 

Pensacola  Telegraph  Oo.  v. 
Western  Union  Tele- 
graph  Co.,    96    U.    S.    1 

284,    321 

People  V.  Assessors,  156  N.  Y. 

417     346 

V.  Comp.  Gen.  Transatlan- 

tique,   107  U.  S.  59 281 

V.  Draper,  15  N.  Y.  532...  44 
V.  Gillson,  109  N.  Y,  389..  146 
V,  Hayes,  140  N.  Y.  484...  95 
V.  Keeler,  99  N.  Y.  463...  21 
V.Marx,     99     N.     Y.     377 

141,    146 

V.  Mensching,  187  N.  Y.  8. .  195 
V.Morton,  156  N.  Y.  136.,  43 

V.  O'Brien,  111  N.  Y.  1 246 

V.  Reardon,  184  N.  Y.  431 

193,  196 

V.Rice,  135  N.  Y.  473.. 39, 42 


416 


TABLE  OF  CASES 


People  V.  Rlnge,  125  App.  Div. 

(N.  T.)  592 144 

V.Roberts,   159  N.   Y.   75.. 322 
Perry  v.  Keene,  56  New  Ilamp- 

shire.    514 179 

Philadelphia  Fire  Association  v. 

New  York,  119  U.  S.  110 

139 

Picard  v.  East  Tennessee  Rail- 
way Co.,    130  U.   S.   637 

238 

Pierce  v.  Carskadon,  16  Wall. 

234    92 

Plessy  V.   Ferguson,  163  U.  S. 

537     143,  145 

Plumley   v.   Massachusetts,   155 

U.    S.   461 156,300 

Plummet   v.   Coler,    178   U.   S. 

115    347 

V.  Northern  Pacific  Ry.,  152 

Fed.   206    155 

Poindexter  v.  Greenhow,  114 

U.  S.  270 309 

Pollard  V.  Hagan,  3  How.  212.  .273 
Pollock    V.    Farmers'    Loan    & 

Trust  Co.,  157  U.  S.  429 

46,    319 

V.      Farmers'     Loan     and 

Trust  Co.,  158  U.  S.  601 

48,    319 

Powell  V.  Pennsylvania,  127  U. 

S.   678    141 

Prize  Cases,  The,  2  Black,  635 

331 

Protector,  The,  12  Wallace,  700 

332 

Public  Clearing  House  v.  Coyne, 

194  U.  S.  497 123,  321 

Pumpelly  v.  Green  Bay  Co.,  13 

Wall.    166    209 

Quarles,   In   re,   158  U.   S.  532 

347,   357 

Rahrer.  In  re,  140  U.  S.  545.. 304 


Railroad   Co.   r.   Maryland,   21 

Wall.  456 2i)5 

V.Otoe,  16  Wall.  667 175 

V.  Peniston,  18  Wall.  5 .347 

V.Rock,  4   Wall.   177 220 

Rapier,  In  re,  143  U.  S.  110... 256 

Rassmussen    v.    United    States, 

197  U.  S.  516 266 

Rauenstein  v.  Railroad,  136  N. 

Y.    528    213 

Rawlins  v.   Georgia,  201  U.   S. 

6.38    130 

Reining  v.  Railroad,  128  N.  Y. 

157     213 

Reynolds  v.  United  States,  98 

U.    S.    145 90 

Rhode  Island  v.  Massachusetts, 

12  Pet.  657   .359 

Rhodes  v.  Iowa,  170  U.  S.  412 

300,    304 

Rigney  v.  Chicago,  102  111.  64 

217 

Robbins  v.  Shelby  County  Tax- 
ing District,  120  U.  S. 
489   287,  291 

Robert   W.    Parsons,   The,    191 

U.    S.    17 306 

Roberts    v.    Harrison,    101   Ga. 

773   153 

Robertson   v.   Baldwin,   165   U. 

S.  275   84,87 

Roby  v.  Smith,  131  Ind.  342 338 

Rogers  v.  Peck,  199  U.  S.  425.  .359 

Rogers  Park  Water  Co.  v.  Fer- 
gus, 180  U.  S.  624 236 

Roller  V.  Holly,  176  U.  S.  398.  .125 

Ross,  In  re,  140  U.  S.  453 271 

St.  John  V.  New  York,  201  U. 

S.  633 156 

St.  Louis,  etc.,  Ry,  v.  Mathews, 

165   U.   S.   1 152 

San  Diego  Co.  v.  Neale,  78  Cal. 

63    215 

Sanborn,  In  re,  148  U.  S.  222. .  19 


CONSTITUTIONAL  LAIW 
Satterlee  v.  Mathewson,  2  Pet. 


417 


380    248 

Sauer  v.  New  York,  206  U.   S. 

536 213 

Savings     &     Loan     Society    v. 

Multnomah    County,    169 

U.   S.   421    159 

Sawyer  v.  Davis,  136  Mass.  239 

210 

Schick  V.  United  States,  195  U. 

S.   65    105 

Scott  V.  Donald,  165  U.  S.  58.. 290 
Scranton  v.  Wheeler,  179  U.  S. 

141     210 

Security  Ins.  Co.  v.  Prewitt,  202 

U.   S.  246    150 

Selliger  v.  Kentucky,  213  U.  S. 

200 165 

Sharpless    v.    Philadelphia,    21 

Pa.   147    175 

Sheffield,  In  re,  64  Fed.  833.  .>.322 
Shepherd  v.  People,   25   N.   Y. 

406  95 

Silz  V.   Hesterberg,   211   U.    S. 

31   156,  301 

Singer  v.  Maryland,  72  Md.  464 

144 

Sinking  Fund  Cases,  99  U.  S. 

700 39 

Sinnot  v.  Davenport,  22  How. 

227 298 


Slaughter     House     Cases,     16 

Wall.  36 65,   336,   141 

Smith  v.  St.  Louis  &  S.  W.  Ry., 

181  U.  S.  248 301 

Smyth  V.  Ames,  169  U.  S.  466 

149,   297 

Soon  Hing  v.   Crowley,  113  U. 

S.  703  137 

South  Carolina  v.  United  States, 

199  U.  S.  437 320 

South  Dakota  v.  North  Caro- 
lina, 192  U.  S.  286.  .359,  368 

Southern  Ry.  v.  Green,  216  U. 

S.  400  139 


Spinney,    Ex    parte,    10    Nev. 

323 342 

Splane,   In  re,  123  Pa.  527 21 

Springville  v.  Thomas,  166  U.  S. 

707 104 

Sproule  V.  Fredericks,  69  Miss. 

898 273 

Stanford's   Estate,    In    re,    126 

Cal.  112   338 

State    V.    Davidson,    114   Wis. 

563    183 

V.  Gazley,  5  Ohio  14 22 

V.  Nash,  66  Ohio  612 43 

V.  Newark,  37  N.  J.  L.  415.  .191 

V.  O'Neil,  58  Vt.  140 109 

V.  Osawkee,  14  Kan.  418..  183 
V.  Patterson,  42  N.  J.  L.  615 

190 

V.  Whittaker,   48  La.   Ann. 

527 109 

V.  Workman,  35  West  Va. 

367  85 

State  Bank  of  Ohio  r.  Knoop, 

16  How.  369 234 

State    Freight   Tax,    15    Wall. 

232 290 

State  Railway  Tax  Cases,  92  U. 

S.  575  161 

State     Tax     on     Foreign-held 

Bonds,  15  Wall.  300.  .159,  164 
State   Tonnage  Tax   Cases,    12 

Wall.    204    283 

Steams   v.   Minnesota,    179    U. 

S.  223  273 

Steger  v.  Traveling  Men's  Bldg. 

Assn.,  208  111.  236 154 

Stokes  V.  State,  5  Baxt.  (Tenn.) 

619 100 

Stone  V.  Mississippi,  101  U.  S. 

814 240 

Strauder  v.  West  Virginia,  100 

U.  S.  303 129 

Strouse,  In  re,  1  Sawyer  605..  102 
Sturges     V.     Crowninshleld,     4 

Wheat.  117 227,  255 


41S 


TABLE  OF  CASES 


Suydam  v.  Williamson,  24  How. 

427     363 

Swift,  Matter  of.  137  N.  Y.  77.  .170 
Swift  V.  Tyson.  16  Pet.  1 363 

Talbot    V.     Hudson,     16    Gray 

(Mass.)   417    203 

Tappan  v.  Mercliants'  National 

Bank,  19  Wall.  400 167 

Templar  v.  State  Board  of  Ex- 
aminers, 131  Micii.  254 
144,   342 

Tennessee  v.  Davis,  100  U.   S. 

257    323,  356 

Texas    v.    White,    7    Wall,    700  ~ 
272,    345 

Thompson   v.   Missouri,    171    U. 

S.  380  96 

V.  Utah,  170  U.  S.  343.  .94,  104 

Trade   Mark  Cases,   100  U.    S. 

25    258 

Turner  v.  Maryland,  107  U.  S. 

38 282 

Twining  v.  New  Jersey,  211  U. 

S.  78  112,  128 

United  States  v.  Arjona,  120  U. 

S.    479    323 

V.  Bromley,  12  How,  88 320 

V.  DeWitt,  9  Wall.  41 258 

V.  Hall,  98  U.  S.  343 183 

V.  Hudson,  7  Cranch  32 362 

V.    Ju   Toy,    198   U.    S.   253 

124,    325 

V.  Kagama,  118  U.  S.  375.. 324 
V.  Knight  Co..  156  U.  S.  1.  .285 
V.  Lav^Tence,  4  Cranch  518  107 
V.  Railroad  Co.,  17  Wallace 

322 348 

V.  Realty  Co.,  163  U.  S.  427 

47,    182 

V.  Texas,  143  U.  S.  621... 360 
V.  Williams,  194  U.  S.  279.  .325 
V,  Wong  Kim  Ark,  169  U.  S. 

649   67,  68,  76 


Van  Brocklin  v.  Tennessee,  117 

U.    S.   151 346 

Vance  v.   Vandercook   Co.,   170 

U.    S.    438 142 

Veazie  Bank  v.  Fenno,  8  Wall. 

533 311 

Vicksburg  Railroad  Co.  v.  Den- 
nis, 116  U.  S.  665 236 

Virginia,    Ex   parte,    100   U.   S. 

339    62,    130 

Virginia  v.  Rives,  100  U.  S.  313. .  130 
V.  Tennessee,  148  U.  S.  503.  .344 
V.  West  Virginia,  206  U.  S. 
290     360 

Virginia  Coupon  Cases,   114  U. 

S.    269    369 

Von  Hoffman  v.  Quincy,  4  Wall. 

535  227,  229,  230,  244 

Wabash  Railway  Company,  The, 

118  U.  S.  557 296 

Walker   v.  Cincinnati,  21   Ohio 

14 188 

Ward    V.    Maryland,    12    Wall. 

418 338 

Webb  V.  Outrim,   (1907)  A.  C. 

81  31 

Webber  v.   Virginia,   103   U.  S. 

334    322 

Weeks  V.   Milwaukee,   10  Wis. 

242    178 

Welch  V.  Swasey,  214  U.  S.  91 . .  144 

Welsh  V.  State,  126  Ind.  71... 342 

W^elton  V.  Missouri,  91  U.  S.  275 
290 

West  V.  Cabell,  153  U.  S.  78..  103 
V.  Louisiana,  194  U.  S.  258 
129 

Western  v.   Charleston,  2  Pet. 

449    346 

Western  Turf  Association  v. 
Greenberg,  204  U.  S.  359 
139 

Western  Union  Co.  v.  Call  Pub- 
lishing Co.,  181  U.  S.  92 
..,„ 36J 


CONSTITUTIONAL   LAW 


419 


Western  Union  Telegraph  Co.  v. 

Kansas,  216  U.  S.  1 139 

V.  Massachusetts,  125  U.  S. 

530  293 

V.Missouri,  190  U.  S.  412..  169 

V.  Myatt,  98  Fed.  335 18 

Weston   V.    Charleston,    2   Pet. 

449    346 

Wheeling  Bridge  &  T.  Ry.  Co. 

V.  Paull,  39  W.  Va.  142..  22 
White  V.  Elevated  Railway,  154 

111.  620   216 

Whiting,   Matter  of,   150  N.  Y. 

27    173 

Willamette  Bridge  Co.  v.  Hatch, 

125  U.  S.  1 301 

Williams    v.    Bruffy,    96   U.    S. 

176  221 

V.  Fears,  179  U.  S.  270 295 

V.  Mississippi,  170  U.  S.  213 

81 

Wilson,  Ex  parte,  114  U.  S.  417 

106 


Wilson  V.  Shaw,  204  U.  S.  24. .  .260 
Wong   Wing   V.   United   States, 

163   U.    S.  228 326 

Woodruff    V.     Mississippi,     162 

U.  S.  291 312 

V.  Parham,  8  Wall.  123.276,  291 
Worcester    v.    Georgia,    6    Pet. 

515  323 

Wurts  V.  Hoagland,  114  U.   S. 

606  152 

Wyman,    Petitioner,    191    Mass. 

276  327 

Yarbrough,  Ex  parte,  110  U.  S. 

651    77 

Yazoo  &  Mississippi  R.  R.  Co. 

V.  Adams,  180  U.  S.  1 238 

Yick  Wo  V.  Hopkins,  118  U.  S. 

356  138 

Young,  Ex  parte,  209  U.  S.  123 

128,  374 


INDEX 

ABOLITION— 

of  indebted  municipality  to  avoid  payment  of  debts,  231-2. 
ABSOLUTE  RIGHTS  (See  Right). 
ACT  OF  SETTLEMENT  (See  Settlement). 
ADMINISTRATIVE— 

bodies  cannot  exercise  judicial  powers,  16-8. 

interests,  whether  superior  to  obligation  of  contract,  241-2. 

officers,  power  to  settle  administrative  questions,   123, 

questions,  settlement  of,  123. 

ADMISSION  (See  States  and  New  States). 
ADMISSION  TO  THE  BAR— 

control  of,  by  courts,  20-1. 
ADVISORY  OPINIONS— 

nature  and  effect  of,  48-9. 
ALIEN— 

federal  power  over,  324-6. 
ALIEN  PROSTITUTES  (See  Prostitutes). 
AMENDMENT— 

of  constitution,  12-4. 

of  federal  constitution   (See  Federal  Constitution). 
AMENDMENT  OF   CONSTITUTIONS— 

(See  Constitution). 

(See  Federal  Constitution). 

AMERICAN    CONSTITUTIONAL    HISTORY     (-Sfee    Constitutional 
History). 

ANTI-TRUST— 

manufacture  not  within  scope  of,  284-5. 
APPELLATE  JURISDICTION— 

of  federal  courts  (See  Federal  Courts). 
APPOINTMENT  OF  OFFICERS— 

in  whom  vested,  21-2, 

421 


422  INDEX 

ARTICLES  OF  CONFEDERATION— 

adoption  of,  8. 

prohibitions  upon  states  In,  24. 

provisions  of,  10. 

ARTIFICIAL  WATER— 

may  be  subject  to  federal  jurisdiction,  306. 

ASSESSMENTS  (See  Local  Assessments). 

ATMOSPHERE— 

pollution  of,  not  taking  of  property,  210-11. 

ATTAINDER    {See  Bill  of  Attaindee). 

ATTORNEY— 

excluded  from  jury  service,  130. 
state  requirements  for  practice  by.  341. 

BAIL— 

how  determined,  107. 

BAKERIES— 

limitation  of  day's  labor  in,  141. 

BANK  NOTES— 

power  to  issue,  in  states  and  United  States,  310-11. 
prohibitive  tax  imposed  upon  issue  by  states,  311. 
where  taxable,  164. 

BANKRUPTCY-. 

discharge  in,  as  affecting  obligation  of  contract,  246-7. 

power  to  legislate  concerning,  concurrent  in  nations  and  states.  255 

whether  impairing  obligation  of  contract,  226-7. 

BANKS,  BANKING  AND  TRUST  COMPANIES— 
subject  to  stringent  regulation,  149-50. 

BAR  {See  Admission  to  the  Bab). 

BARBER— 

may  not  be  required  to  be  a  citizen,  144. 
requirement  of  citizenship  for  license,  invalid,  342. 

BENEFIT— 

compensation  in,  for  exercise  of  eminent  domain,  215-6. 
in  local  assessment  must  equal  assessment,  189-90. 

"BETTERMENT  LAWS"— 
whether  valid,  155. 

BILL  BOARDS— 

right  to  forbid,  143-4. 


CONSTITUTIONAL   LAW  428 

BILL  OF  ATTAINDER— 
what  constitutes,  92. 

BILL  OF  RIGHTS— 

in  state  and  federal  constitutions,  53-4. 

subject  discussed,  4. 
BILLS  OF  CREDIT— 

issuance  of,  by  states,  prohibited,  309. 

issuance  of,  by  United  States,  308-9. 

what  constitute,  within  prohibition  upon  states,  309-10. 

BLACKLISTING— 

may  be  forbidden,  147. 

BOARDS— 

exercise  of  legislative  power  by,  118-9. 

BOND  DEBTS— 

suits  between  states  upon,  367-8. 

BONDS  {See  Municipal  Bonds). 
hampering  use  of  coupons  of,  233. 
where  taxable,  164-5. 

"BORN  WITHIN  THE  UNITED  STATES"— 
meaning  of,  69-70. 

BOUNTY-^ 

provision  for  payment  of,  on  sugar  after  repeal  of  act,  182. 
to  sugar  producers,  46-7. 

BUSINESS— 

may  be  charged  with  expense  of  avoiding  peculiar  dangers,  152. 
subject  to  regulation  where  affected  with  a  public  interest,  148-50. 

BUTCHERS— 

rights  of,  to  pursuit  of  occupation,  63. 

CATTLE— 

slaughtering  of,  subject  to  regulation,  141. 
when  diseased,  may  be  destroyed,  201. 

CHANGE  OF  GOVERNMENT  (See  Government). 

CHARITY— 

taxation  for  public,  valid,  183. 

CHARTER  PRIVILEGES— 

as  contracts  protected  against  impairment.  233-4. 

construed  as  non-transferable,  237-8. 

within  prohibition  of  Impairment,  strictly  construed,  235-7. 

CHATTELS— 

location  of,  for  purposes  of  taxation,  159-60. 


484  INDEX 

CHILDREN— 

born  abroad  of  American  parents,  bow  made  citizens,  76. 

bom  on  foreign  public  vessels,  status  of,  71. 

born  to  diplomatic  representatives,  status  of,  70-1. 

born  to  public  enemies  in  hostile  occupation,  status  of,  71-2. 

compulsory  education  of,  145. 

CHINESE— 

cannot  be  naturalized,  75. 

citizens  if  born  in  the  United  States,  68. 

determination  of  right  of,  to  enter  United  States,  124. 

CHISHOLM  V.  GEORIGA— 

case  cited,  366. 

CHURCHES— 

may  be  exempted  from  taxation,  181. 

CIGARETTES— 

attempted  evasion  of  law  against,  by  importation  in  small  pack- 
ages, 279-80. 
classification  of  dealers  in,  for  purposes  of  taxation,  194. 

CITIZENS  (-See  Citizenship). 
interstate  privileges  of,  335-6. 

occupational  qualifications  as  affected  by  domicile  of,  341-2. 
of  states  may  have  benefit  of  proprietary  interest,  338-9. 
of  states,  privileges  and  immunities  of,  336-7. 
of  United  States,  privileges  and  immunities  of,  62-5. 
procedural  rights  of,  as  affected  by  domicile.  340-1. 
state  discrimination  against  those  of  other  states  forbidden,  338. 

CITIZENSHIP  {See  Diveese  Citizenship). 
British,  67. 

does  not  include  right  of  suffrage,  81-2. 

exclusion  from,  of  person  not  subject  to  federal  jurisdiction,  70-3. 
federal,  meaning  of,  67-8. 
how  far  enjoyed  by  cori)orations,  74. 
limitations  upon,  68-73. 

state,  as  affected  by  the  fourteenth  amendment,  75-6. 
state,  power  to  confer,  75-6. 
under  Fourteenth  Amendment,  68. 

CIVIL  RIGHTS  ACT— 
subject  discussed,  59-61. 

CLEARING  HOUSE  (See  Banks,  Banking  and  Tbust  Compaky). 

CLERGYMEN  (See  Ministebs). 

COLLECTIVE  NATURALIZATION  (See  Natttbalization). 


< 


CONSTITUTIONAL   LAW, 

COLLUSIVE  LITIGATION— 

not  considered  by  courts,  45. 
COMBINATIONS  IN  RESTRAINT  OF  TRADE— 

may  be  forbidden  by  statute,  147-8. 
COMMERCE— 

defined,  283-5. 

distinguished  from  manufacturing,  284-5. 

interstate,  defined,  285-6. 

interstate,  signifies  passing  of  state  line,  287. 
COMMISSION— 

Interstate  Commerce  {See  Interstate  Commeece  Commission). 
COMMON  LAW— 

decisions  of  state  courts  on,  followed  by  federal  courts,  362-3. 

non-existent  in  federal  system,  361-2. 
COMPENSATION— 

measure  of,  in  eminent  domain,  214-5. 

payment  of,  essential  to  exercise  of  eminent  domain,  199-200. 
COMPETITION— 

regulation  of,  to  prevent  fraud,  146. 
CONCURRENT  JURISDICTION— 

of  federal  courts  (See  Fedebal  Courts). 
CONCURRENT  POWERS  (See  Federal  Powers). 
CONDEMNATION   (See  Eminent  Domain). 
CONFEDERATE  STATES— 

status  of,  during  Civil  War,  344-5. 
CONFEDERATION— 

(See  Articles  of  Confederation). 

failure  of,  11. 
CONFLAGRATION— 

destruction  of  property  to  prevent  spread  of,  201. 
CONGRESS— 

(See  Federal  Powers). 

cannot  be  compelled  by  courts  to  act,  43. 

control  of  election  of  presidential  electors  by,  77-8. 

may  regulate  congressional  elections,  77. 

power  of,  to  regulate  commerce  (See  Regulation  of  Commerce). 

vested  with  maritime  power,   307. 
CONGRESSIONAL  REPRESENTATION— 

as  affected  by  limitations  of  suffrage,  82. 
CONSTITUTION— 

(See  Federal  Constitution). 

(See  State  Constitutions). 

amending,  methods  of,  5,  12-5. 

in  England  and  the  United  States,  5. 


426  INDEX 

CONSTITUTION— Continued. 

peaceful   revolution,  14-5. 

where   constitutions   contain  no   express   provision,   13. 

where  exclusive  methods  are  provided  by  constitutions,  14. 

where  non-exclusive  methods  are  provided  by  constitutions,  14. 

defined,  3. 

earliest  American  state,  S-9. 

English  (See  English  Constitution).  ! 

Federal  (See  Federal  Constitution).  I 

of  Massachusetts,  9-10.  ' 

prohibitive  features  of,  6. 

I 
provisions  of,  50-3.  j 

establishing  frame  of  government,  50.  i 

guaranteeing  private  rights,  50-1.  1 

regulating  government  in  detail,  52-3.  j 

regulating  intergovernmental  relations  under  federal  system,  52.      ' 

unwritten,  3-5. 

distinguished  from  written,  5. 

written,  in  America,  5-6. 

CONSTITUTIONAL  CONVENTION— 

how  called,  11-2.  .' 

CONSTITUTIONAL  GUARANTIES— 

in  early  state  constitutions  and  federal  constitution,  53.  ; 

scope  and  history  of,  50-66.  ;l 

CONSTITUTIONAL  HISTORY—  | 

American,  before  1789,  7-8.  'i 

CONSTITUTIONAL  LAW—  I; 

(See  Constitutional  Guaranties). 
American,  nature  of,  1-3. 
article  on  subject,  1-375.  M 

due  process  and  equal  protection  of  law,  111-248  (See  Due  Peocess 

OF  Law), 
eminent  domain,  199-218  (See  Eminent  Domain). 
federal  government,  249-375. 
federal  powers,  249-58  (See  Federal  Powers). 
impairment  of  obligation  of  contracts,  219-48  (See  Impaibment  of 

Obligations  of  Contracts). 
intergovernmental  relations,  335-48. 
limits  of  separation  of  governmental  powers,  21. 
money  and  banking,  308-16  (See  Money  and  Banking). 
object  of,  2-3. 

personal  and  religious  liberty,  86-90. 
police  power,  139-57  (See  Police  Power). 
political  rights,  67-85. 


CONSTITUTIONAL   LAW  427 

CONSTITUTIONAL  LAW— Continued. 

power  to  declare  laws  unconstitutional,  28-49    {See  Power  to  De- 
clare Laws  Unconstitutional), 
protection  to  persons  accused  of  crime,  91-110. 

historical  reasons  for,  91. 
regulation  of  conuuerce,  274-307    (See  Regulation  of  Commebce). 
separation  of  departments  of  government,  16-28. 

American  doctrine,  16. 
territories,  dependencies  and  new  states,  259-73. 

CONSTITUTIONAL  PROHIBITIONS— 

applicable  in  states  and  incorporated  territories,  266. 
application  of,   in  territories,  261-2. 

in  general  not  applicable  to  unincorporated  territory,  267-70. 
functions  of,  62. 

CONSTRUCTION— 

of  federal  powers  (See  Federal  Powers). 

CONSULS— 

constitution  not  applicable  to  trial  by,  in  foreign  territory,  271. 

CONTEMPT  OF  COURT— 
imprisonment  for,  374. 
inherent  power  of  court  to  punish,  20. 

CONTRACTS— 

foreign,  enforcement  of,  248. 

impairment  of  obligations  of  (See  Impairment  of  Obligations  of 

Contracts ) . 
increasing  obligation  of,  by  law,  248. 

private,  affecting  public  interest,  subject  to  regulation,  243. 
taken  under  eminent  domain,  206. 
under  what  conditions  discharged  by  bankruptcy,  240-7. 
within  prohibition  of  impairment  of  obligations  of,  221-2. 

CONVENTION,  CONSTITUTIONAL  (See  Constitutional  Convention). 

COPYRIGHT— 

federal  jurisdiction  of,  321-2. 

CORPORATE  FRANCHISES— 
where  taxable,  168-9. 

CORPORATION— 

citizen  of  state  of  creation,  361. 
control  of,  by  states,  138-9. 

federal,  may  sue  or  be  sued  in  federal  courts,  357-8. 
franchise  of,  taxable  by  state,  293-5. 
how  far  under  equal  protection  of  the  laws,  138-9. 
in  what  sense  citizens,  74. 

interstate  business  of,  not  subject  to  state  limitations,  297-8. 
S— 29 


428  INDEX 

CORPORATION— Continued. 

not  protected  by  immunity  of  agents,  100. 

place  of  business  as  afifecting  situs  of  stock,  167. 

property  of.  where  taxable,  160-3. 

regulation  of,  150. 

sale  of  stock  on  margin,  137. 
CORPORATION  CHARTER— 

as  contract  protected  against  impairment,  224-5. 
COUPONS  (See  Bonds). 
COURT— 

control  of  admission  to  the  bar,  20-1. 

inherent  power  to  punish  contempt  of,  19-20. 
COURT  OF  VISITATION— 

regulation  of  public  service  companies  by,  17-8. 
COURTS— 

(See  Fedebal  Courts). 

access  to,  requisite  upon  question  of  due  process  of  law,  126-8 

cannot  be  vested  with  non-judicial  powers,  18-9. 

cannot  compel  action  by  legislature  or  executive,  42-3. 

decisions  of,  not  impairment  of  obligations  of  contracts,  220. 

of  territories,  266-7. 

power  of,  21-2,  32-6. 

to  appoint  officers,  21-2. 
to  assess  taxes,  22. 
to  declare  laws  unconstitutional,  32-6. 
CREDIT  (See  Bills  of  Cbedit). 
CREDITOR— 

debts  taxable  at  residence  of,  164. 
CREDITS— 

employed  in  business,  where  taxable,  165-6. 
CRIME— 

(See  Infamous  Ceime). 

protection  to  persons  accused  of  (See  Constitutional  Law). 
CRIMINAL  PROCEDURE  (See  Habeas  Corpus). 
CRIMINAL  PROSECUTION— 

privilege    against    unreasonable    searches   and    seizures   applicable 
to,  102. 

protection  against,  in  case  of  self-incrimination,  100-1. 
CRUEL  AND  UNUSUAL  PUNISHMENT— 

forbidden  by  constitutions,  107-9. 
CUBA— 

federal  constitution  not  applicable  during  American  occupation  of, 
270-1. 


CONSTITUTIONAL   LAW  429 

DAMAGES— 

by  statute,  recoverable  in  emineut  domain  proceedings,  217. 

DARTMOUTH  COLLEGE  CASE— 
principle  illustrated,  224-5. 

DEBT  (See  Bond  Debts). 

documentary  evidence  of,  where  taxable,  164, 

taxable  by  state  of  debtor  on  death  of  creditor,  171-2. 

where  taxable,  163-4. 

DECLARATION  OF  INDEPENDENCE— 

adoption  of,  8. 

DEPARTMENTS  OF  GOVERNMENT— 

(/See  Constitutional  Law). 
inherent  powers  of,  19-21. 
separation  of,  29. 

DEPRIVATION  OF  PROPERTY— 

forbidden  by  due  process  of  law,  135. 

DESTRUCTION— 

of  personal  property,  117-8. 

DIPLOMATIC  REPRESENTATIVES— 

children  of,  born  in  the  United  States,  not  citizens,  70-1, 

DIRECT  TAXES— 

within  language  of  constitution,  defined,  318-9. 

DISCHARGE  {See  Bankbtjptcy). 

DISCRETION  (See  Legislative  Discbetion). 

DISCRIMINATION— 

arbitrary,  forbidden,  137-8. 

DISTRIBUTION— 

to  public,  of  public  funds,  invalid,  176-7. 

DISTRICT— 

taxing  (See  Taxing  District) . 

DISTRICT  OF  COLUMBIA— 

status  of,  266. 

DIVERSE  CITIZENSHIP— 

as  ground  of  federal  jurisdiction,  360-1. 

DIVORCE— 

within  control  of  state,  222. 

DOCTORS— 

(See  Physician). 

excluded  from  jury  service,  130. 


480  INDEX 

DOCUMENTARY  EVIDENCE— 

of  debts  or  property,  where  taxable,  164-5. 

DOMESTIC  RELATIONS  AND  PERSONS— 

(See  Marbiage;  Divorce), 

control  of,  under  police  power,  lM-5. 

DOMESTIC  VIOLENCE— 

states  protected  against,  83. 

DOMICILE— 

as  affecting  occupational  qualifications  of  citizens,  341-2. 
of  citizens,  as  affecting  procedural   rights,  339-41. 

DRED  SCOTT  CASE— 
case  cited,  87. 

DRUMMER— 

not  subject  to  state  taxation  on  orders  for  interstate  commerce,  292. 

DUE  PROCESS  OF  LAW— 

access  to  courts  essential  upon  question  of,  126-8, 

applies  to  all  departments  of  government,  132-3. 

applies  to  rights  as  well  as  procedure,   131. 

as  affecting  delegation  of  legislative  power  to  boards,  118-9. 

as  affecting  procedure  for  taxation  and  eminent  domain,  119-21. 

as  affecting  summary  destruction  of  personal  property,  117-8. 

as  affecting  taxation,  158-98. 

deprivation  of  property  forbidden  by,  135. 

does  not  forbid  self-incrimination,  128. 

does  not  require  confronting  witnesses,  128-9. 

does  not  require  notice  of  legislative  acts,  118, 

equal  protection  of  laws  applicable  to  corporations,  138-9. 

forbids  taxation  for  private  purposes,  175. 

general  requisites  of,  111-2. 

guarantees  equal  protection  of  laws,  136-8. 

impaired  by  exclusion  from  jury  service,  129-30, 

impaired  by  fraudulent  decision,  125-6, 

indictment  by  grand  jury  not  essential  to,  113-4, 

in  matters  over  which  government  has  absolute  control,  121-2. 

judicial  tribunal  not  necessary  for,  122-4. 

jurisdiction  as  affecting,  112-3. 

liberty  as  protected  by,  133-5. 

not  inconsistent  with  erroneous  decision,  125, 

notice,  kind  of,  requisite  for,  124-5, 

procedure  according  to  settled  usage,  valid,  115-7. 

procedure  giving  notice  and  fair  hearing,  valid,  113-5. 

retroactive  laws,  when  inconsistent  with,  153-5. 

service  of  process  as  affecting,  112-3. 


.^' 


CONSTITUTIONAL   LAW  431 

DUTIES  (See  Tonnage  Duties), 
on  exports,  forbidden,  280. 
on  imports,  forbidden  to  states,  274-5. 

ECONOMIC  INTERESTS— 

whether  superior  to  obligation  of  contract,  242. 
EDUCATION— 

compulsory,  145. 

EIGHT-HOUR  DAY,  37. 

EIGHTH  AMENDMENT  (See  Federal  Constitution). 

ELECTIONS— 

to  Congress  may  be  regulated  by  Congress,  77. 

ELECTORS  (See  Presidential  Electors). 

ELECTRIC  LIGHT  COMPANY— 

(See  Public  Service  Corporations). 
subject  to  regulation,  148-50. 

ELEVATED  RAILROAD— 

abutting  owners  entitled  to  compensation  for  damages  by,  212-3. 
ELEVATION  (See  Track  Elevation). 
ELEVATOR  (See  Grain  Elevator). 
ELEVENTH  AMENDMENT  (See  Federal  Constitution), 

EMINENT  DOMAIN— 

casting  material  on  other's  property  under,  209-10. 

compensation  determined  by  fair  market  value,  214-5. 

compensation  for  exercise  of,  in  benefits,  215-6. 

distinguished  from  various  interferences  with  property,  200-1. 

exercise  in  aid  of  irrigation  ditches,  203-4. 

improvement  of  navigation  does  not  require  exercise  of,  211. 

kinds  of  property  taken  under,  206-7. 

legislative  discretion  in  deciding  necessity  and  scope  of,  205-6. 

meaning  of  public  use  in  connection  with,  201-5. 

noise  does  not  require  exercise  of,  210. 

physical  occupation  of  property  under,  208-9. 

pollution  of  atmosphere  does  not  require  exercise  of,  210-11, 

power  of  and  guaranties  respecting,  199-200. 

preliminary  surveys  before  compensation,  216-7. 

procedure  for,  required  by  due  process  of  law,  121. 

procedure  of,  determined  by  statute,  218. 

requires  payment  of  compensation,  199-200. 

statutory  liability  for  damaging  property  under,  217. 

what  amounts  to  a  taking  of  property  under,  207-8. 

whether  exercise  of  requisite  for  changes  in  public  streets,  211-4. 


482  INDEX 

EMPLOYERS  LIABILITY  Ad- 
as applied  to  interstate  commerce,  303. 
GMPLOYMENT  AGENCY— 

tax  ou  business  of,  295. 
ENEMIES  {See  PuBUC  Enemies). 
ENGINEER— 

excluded  from  jury  service,  130. 
ENGLISH  CONSTITUTION— 

what  is,  3-4. 
EQUAL  PROTECTION  OF  LAWS— 

how  far  applicable  to  corporations,  138-9. 

meaning  of,  136-8. 
EQUALITY— 

of  states  (See  States). 
ERIE  CANAI^- 

subject  to  federal  jurisdiction,  306. 
ESTHETIC  PURPOSES— 

exercise  of  eminent  domain  for,  valid,  205. 

exercise  of  police  power  in  aid  of,  invalid,  143-4. 
EVIDENCE- 

documentary  (See  Documentaey  Evidence). 

prima  facie  rules  of,  157. 
EXCESSIVE  BAIL  AND  FINES— 

forbidden  by  constitution,  107. 
EXCISE  TAXES— 

independent  of  value  of  articles  taxed,  196. 
EXCLUSIVE  JURISDICTION— 

of  federal  courts  (See  Federal  Coubts), 
EXCLUSIVE  POWERS  (See  Fedebal  Powers). 
EXECUTIVE— 

action  of,  cannot  be  compelled  by  courts.  42-3. 
EXEMPTIONS— 

from  taxation  (See  Taxation). 
EXPATRIATED  PERSONS— 

not  citizens,  72. 
EXPATRIATION  (See  Expatriated  Persons). 
EXPORT  TAXES— 

within  constitutional  prohibition,  interpreted,  318. 
EXPORTS— 

duties  on,  forbidden,  280. 

prohibition  of  tax  on,  consistent  with  reasonable  state  inspection, 
281-2. 


CONSTITUTIONAL    LAW  433 

EXPORTS— Continued. 

what  constitutes  a  tax  upon,  280-1. 

within  proliibitiou  of  duty  upon,  signify  foreign,  280. 

EX  POST  FACTO  LAWS— 

changes  in  procedure  not  within  prohibition  against,  95-6. 
early  definition  of,  92-4. 
later  definition  of,  94. 

mitigating  statutes  not  open  to  constitutional  objection,   94-5. 
retroactive  qualifications  for  profession,  not  prohibited  unless  un- 
reasonable, 96-9. 

EXPRESS  COMPANIES— 

imposition  of  conditions  by  state  on  interstate  business  of,  298. 
property  of,  where  taxable,  161-2. 


FAIR  HEARING— 

essential  to  due  process,  113-5. 

FARMER— 

appropriation  from  taxes  to  purchase  grain  for,  in  adversity,  183. 

FEDERAL  CONSTITUTION— 
adoption  of,  11-12. 
amendment  of,  15. 
amendments  I  to  X,  53-4. 
bill  of  rights  in,  53-4. 

changes  effected  in  suffrage  by  Fourteenth  and  Fifteenth  amend- 
ments, 7S-9. 
divides  governmental  jwwers  between  states  and  nation,  6. 
division  of  powers  between  state  and  nation,  25-6. 
Eighth  Amendment,  107. 
Eleventh  Amendment,  366. 
Fifteenth  Amendment,  66. 
Fifth  Amendment.  99-100,  106. 
Fourteenth  Amendment,  57-65,  68-70. 

adoption  of,  57-8. 

analysis  of,  58-9. 

effect  of,  upon  citzenship,  68-70. 

enforcement  of,  43. 

forbids  state  action  only,  59-61. 

purpose  of,  57-8. 

what  amounts  to  state  action,  61-2. 

what  are  privileges  and  immunities  of  citizens  of  the  United 
States,  62-5. 
judiciary  article  of,  applicable  to  states  only,  266-7. 


434  INDEX 

FEDERAL  CONSTITUTION— Continued. 

not  applicable  to  foreign  territory  temporarily  occupied,  270-1. 

not  applicable  to  trials  by  consuls  in  foreign  territory,  271. 

original  provisions  of,  concerning  suffrage,  76-8. 

prohibitions  upon  states  before  1865,  54-6. 

provisions  of,  for  naturalization,  74-6. 

text  of,  392-408. 

Thirteenth  Amendment,  56-7. 

FEDERAL  COURTS— 

agreements  not  to  remove  suits  into,  unenforceable,  150. 

Circuit  Courts,  352. 

Circuit  Courts  of  Appeal,  352. 

District  Courts,  352.  '., 

exclusive  and  concuiTent  jurisdiction  of,  354.  : 

jurisdiction  of  suits  between  states,  359-60. 

jurisdiction  of  suits  between  states  and  United  States,  360. 

law  applied  by,  361-5. 

maritime  power  of,  305-6. 

organization  of,  352-3.  «, 

original  and  appellate  jurisdiction  of,  353-4, 

suits  against  states  not  cognizable  in,  365-8.  .f. 

Supreme  Court,  352-3.  .'i 

transfer  of  cases  to,  from  state  courts,  354-7.  -. 

after  trial,  356-7. 

before  trial,  354-6. 
what  constitute  federal  questions  within  jurisdiction  of,  357-8. 

FEDERAL  FUNCTIONS— 

interference  of  states  with,  345-7. 

FEDERAL  GOVERNMENT— 

a  government  of  limited  powers,  26-7. 
laws  of,  superior  to  state  laws,  27-8. 
nature  of,  26-7. 
participation  of  states  in,  345. 
r>ower  over  naturalization,  74-5. 

FEDERAL  POWERS—  j 

as  affected  by  reserved  powers  of  states,  257-8.  ;v 

exclusive  and  concurrent,  354-5,  254-5.  '; 

implied,  251-4.  '/ 

from  groups  of  other  powers,  253-4.  * 

may  be  exercised  for  what  purposes,  255-7.  '^ 

military  power,  329-34.  v- 

of  taxation,  317-20.  '-Y 

over  aliens,  324-6.  }■ 

over  bankruptcy,  320.  i 


CONSTITUTIONAL   LAW  435 

FEDERAL  POWERS— Continued. 

over  copyright  and  patent,  321-2. 

over  federal  districts  within  states,  328-9. 

over  Indians,  323-4. 

over  maritime  offenses  and  offenses  against  the  law  of  nations,  322-3. 

over  money  and  banking,  308-16. 

over  weights  and  measures,  320. 

postal  power,  320-1. 

prohibitions  upon  exercise  of,  257. 

strict  V.  liberal  construction  of,  249-51. 

to  make  treaties,  326-8. 
FEDERAL  QUESTIONS— 

meaning  of,  as  warranting  consideration  by  federal  courts,  357-8. 
FEDERAL  SYSTEM— 

provisions  regulating  intergovernmental  relations  under,  in  consti- 
tutions, 52. 

FELONY— 

person  accused  of,  may  not  waive  jury  trial,  105. 
FIFTEENTH  AMENDMENT  (See  Federal  Constitution). 
FIFTH  AMENDMENT  (See  Federal  Constitution). 
FIREMEN— 

taxation  for  pensions  of,  183. 
FIREWORKS— 

keeping  of,  may  be  forbidden,  201. 
FLETCHER  v.  PECK— 

case  cited,  222-4. 
FOREIGN  COMMERCE— 

power  of  Congress  over,  paramount,  302-4. 
FOREIGN  PUBLIC  VESSELS— 

children  born  on,  not  citizens,  71. 
FORESTS— 

conservation  of,  151. 
FORM  OF  GOVERNMENT  (See  Government). 
FOURTEENTH  AMENDMENT  (See  Federal  Constitution). 
FRAME  OF  GOVERNMENT— 

provisions  for,  in  constitutions,  50. 
FRANCHISE— 

of  corporation  engaged  in  interstate  commerce,  taxable  by  state,  293-5. 

taken  under  eminent  domain,  206-7. 

where  taxable,  167-9. 
FRAUD— 

in  decision,  impairs  due  process  of  law.  125-6. 

protection  against,  146. 


486  INDEX 

FREEDOM  OF  SPEECH  AND  PRESS— 

Congress  may  not  abridge,  83-4. 
"FRONT-FOOT  RULE"— 

in  local  assessments,  189-90. 
FUGITIVE  SLAVES— 

provision  for  return  of,  343. 
FUNCTIONS  (Sec  Govebnmental  Functions). 
FUTURE  DELIVERY— 

sale  of  stock  for,  137. 

GAME— 

state  statute  forbidding  possession  of  dead,  during  season,   held 
valid,  300-1. 

GARNISHMENTS— 

service  of  process  in,  113. 

GAS  COMPANY  (See  Public  Service  Cobpobations). 
subject  to  regulation,  148-50. 

GIBBONS  V.  OGDEN— 

cited  and  explained,  249-51,  283. 
"GOLD  CONTRACTS"— 

constitutionality  of  state  statutes  forbidding,  312. 

GOVERNMENT— 

(See  CoNSTiTUTioNAi,  Law). 

(See  Depabtments  of  Government). 

(See  Federal  Government), 

(See  Frame  of  Government). 

(See  Republican  Form  of  Government). 

form  of.  prescribed  by  constitutions,  6. 

GOVERNMENT  NOTES— 
as  legal  tender,  312-6. 

GOVERNMENTAL  FUNCTIONS— 

support  of,  by  taxation,  173-5. 
GOVERNMENTAL  POWERS— 

cannot  be  impaired  by  contract,  242-3. 
"GRANDFATHER  CLAUSE"— 

explained,  80. 
GRAIN  ELEVATOR^ 

site  for,  cannot  be  acquired  by  eminent  domain,  201. 
GRAND  JURIES— 

not  required  in  Hawaii  or  Philippines,  270. 

provided  for  in  Fifth  Amendment  of  federal  constitution,  106. 


CONSTITUTIONAL   LAW  437 

GRIST   MILLS— 

taxation  for  establishmeat  of,  178-9. 
GUARANTIES  (See  Constitutional  Guaranties). 

HABEAS  CORPUS— 

jurisdiction  of  Federal  courts  in  matters  of,  358-9. 

power  to  suspend,  under  martial  law,  333. 
HAWAII— 

no  constitutional  right  to  grand  jury  in,  270. 

no  constitutional  right  to  trial  by  jury  in,  270. 

whether  birth  in,  confers  federal  citizenship,  69. 
HEALTH   (See  Public  Health). 

HEARING— 

(See  Fair  Hearing). 

how  far  requisite  in  eminent  domain,  121. 
HORSE-SHOEING— 

requirement  of  license  for,  held  invalid,  144. 
HOUSE— 

quartering  soldiers  in,  334. 

IMMIGRANTS— 

law  exacting  state  inspection  fees  held  unconstitutional,  281. 
IMMUNITIES  (See  Citizens). 
IMPAIRMENT  OF  OBLIGATIONS  OF  CONTRACTS— 

certain  legislative  powers  unrestrainable  by  contract,  238-43. 
administrative  and  economic  interests,  241-3. 
public  health  and  safety,  240-1. 
public  morals,  238-40. 

constitutional  prohibitions  against,  219-20. 

contracts  within  prohibition  of  impairment,  defined,  221-2. 

curtailment  of  funds  for  payment  of  municipal  bonds  as,  230. 

disappearance  of  taxing  oflScers  not  preventable,  230-1. 

impairment  of  remedies  for  breach  of  contract  as,  227-9. 

in  case  of  foreign  contracts,  248. 

in  case  of  foreign  suits,  247-8. 

laws  increasing  obligation  of  contract  not  within  prohibition,  248. 

obligation  of  contract  defined,  225-7. 

special   charter  privileges   as   contracts  protected   against   impair- 
ment, 233-4. 

special  privileges  protected  by  rule  against,  strictly  construed,  235-7. 

valid  changes  in  remedies  do  not  constitute,  232-3. 

what  acts  of  impairment  forbidden,  220-1. 

whether  accomplished  by  abolition  of  indebted  municipality,  231-2. 


f 


438  INDEX 

IMrORTER— 

action  by,  for  destruction  of  Imported  goods,  122. 

state  license  fee  from,  invalid,  276-7. 
IMPORTS— 

witliin  prohibition  of  states  to  tax,  signify  foreign,  276. 
INCOME  TAX— 

case  cited  and  explained,  47-8. 

whether  a  direct  tax,  319. 

whether  constitutional  if  progressive,  197. 

"INDESTRUCTIBLE  UNION  OF  INDESTRUCTIBLE   STATES"— 

doctrine  of,  272. 
INDIANS— 

federal  jurisdiction  of,  323-4. 

may  become  citizens,  73. 

tribal,  not  citizens,  72-3. 
INDUSTRY— 

whether  may  be  exempted  from  taxation,  181. 

INFAMOUS  CRIME— 
meaning  of,  106. 

INHERITANCE  TAXES— 
may  be  progressive,  197. 
not  direct  taxes,  319. 
situs  of  property  for,  169-73. 

in  case  of  domestic  property  of  non-resident  decedent,  171-3. 

in  case  of  domestic  property  of  resident  decedent,  170. 

in  case  of  foreign  property  of  non-resident  decedent,  173. 

in  case  of  foreign  property  of  resident  decedent,    170-1. 

INJUNCTION— 

applicable  to  taking  of  property  without  condemnation,  218. 

right  of,  to  restrain  suit  on  behalf  of  state,  373-5. 
INSANE  PERSONS— 

care  of,  by  state,  145. 
INSPECTION— 

by  states,  of  imports,  not  unconstitutional,  281-2. 
INSURANCE— 

whether  interstate  commerce,  287. 

INSURANCE  COMPANIES— 

subject  to  stringent  regulation,  149-50. 

INSURANCE  POLICIES— 

held  as  securities,  where  taxable,  165-6. 

INSURRECTION— 

treatment  of,  as  war,  331. 


CONSTITUTIONAL   LAW.  489 

INTERSTATE  COMMERCE— 
{8ee  Commerce). 
(See  Reguiation  of  Commerce). 

INTERSTATE  COMMERCE  COMMISSION— 

power  to  enforce  orders,  18. 
INTERSTATE  RELATIONS— 

agreements  between  states,  343-4. 

extradition  and  rendition,  343. 

recognition  of  public  acts,  records,  and  judicial  proceedings,  342-3. 
INVASION— 

states  protected  against,  83. 
IRRIGATION— 

determination  of  lands  benefited  by,  123. 

exercise  of  eminent  domain  in  aid  of,  203-4. 
IRRIGATION  DISTRICTS— 

creation  of,  held  valid.  186. 

JOINT  ACTION— 

to  improve  property  may  be  compelled,  151-2. 
JUDGE— 

function  of,  in  jury  trial,  104-5. 

liability  of,  for  excluding  negro  from  jury,  61-2. 

of  federal  courts,  tenure  of,  351-2. 
JUDGMENT— 

interest  on,  may  be  reduced  by  law,  222. 
JUDICIAL  POWERS— 

cannot  be  exercised  by  legislative  and  administrative  bodies,  16-8. 
JUDICIAL  TRIBUNAL— 

not  necessary  for  due  process  of  law,  122-4. 
JURIES  (See  Grand  Juries). 
JURISDICTION— 

(See  Military  Jurisdiction). 

as  affecting  due  process  of  law,  112-3. 

of  courts  of  subject  matter  (See  Courts). 

of  courts  over  parties  (See  Courts). 

JURY  TRIAL— 

constitutional  right  of,  not  applicable  to  misdemeanors,  105. 

definition  of,  104. 

diversities  of,  in  various  states,  105-6, 

function  of  judge  in,  104-5. 

may  be  abolished,  115. 

not  essential  in  Hawaii  or  Philippines,  270. 

not  essential  to  condemnation  proceedings,  218. 


440  INDEX 

JURY   TRIAL— ConUnued. 
right  of,  in  territories,  266. 
unanimous  verdict  as  feature  of,  104, 

KINGS— 

divine  right  of,  2. 

LABOR  LEGISLATION— 
validity  of,  147. 

LAND  OWNER— 

may  be  required  to  remedy  nuisances  due  to  natural  conditions,  152-3. 
LANDS  {Sec  Public  Lands). 

LAUNDRIES— 

limit  of  day's  labor  in,  141. 
regulation  of,  138. 

LAW  (See  Constitdtional  Law). 

LAW  OP  NATIONS— 

power  of  Ck)ngress  to  prescribe  punishment  of  offences  against,  322-3. 

LAWS— 

(See  Power  to  Declare  Laws  Unconstitutional). 

equal  protection  of,  136-8. 
LAWYERS  (See  Attorney). 
LEGAL  TENDER— 

government  notes  as,  312-6. 

power  to  make,  311-2. 

LEGAL  TENDER  CASES— 

cases  cited  and  discussed,  314-6. 

LEGISLATIVE  ACT— 

notice  of,  not  required,  118. 

LEGISLATIVE  DISCRETION— 

in  deciding  necessity  of  exercise  of  eminent  domain,  205-6. 
in  selecting  objects  of  taxation,  191-6. 
limitations  upon,  193-5. 

LEGISLATURE— 

action  of,  cannot  be  compelled  by  courts,  42-3. 

cannot  exercise  judicial  powers,  16-8. 

discretion  of,  in  selecting  objects  of  taxation,  191-6, 

limitations  upon,   193-5. 
power  of,  20-2. 

over  admission  to  the  bar,  20-1. 

to  appoint  officers,  21-2. 


CONSTITUTIONAL   LAW  441 

LIBERAL  CONSTRUCTION  (See  Federal  Powebs). 

LIBERTY— 

(See  Religious  Libebtt). 
meaning  of,  133-5. 

LIFE  INSURANCE  (See  Insurance). 

LIMITATIONS— 

(See  Statute  of  Limitations). 

upon  legislative  discretion  in  selecting  objects  of  taxation,  193-5. 

LIQUOR— 

contracts  for  sale  of,  subject  to  state  prohibition,  243. 
prohibition  of,  as  affected  by  interstate  commerce  character  of  busi- 
ness, 298-300. 
under  the  "Wilson  Act,"  300. 

Liquor  Dealers — 

liability  for  damages  caused  by  intoxication,  152. 

LITIGATION  (See  Collusive  Litigation). 

LOCAL  ASSESSMENTS— 

whether  property  benefited  but  not  assessed  is  objection,  190. 

LOCOMOTIVE— 

liability  of,  for  fire  caused  by  (See  Railroad). 

LOCOMOTIVE  ENGINEERS— 

compulsory  examination  of  for  color  blindness,  297. 

LOTTERY— 

matter  of,  may  be  excluded  from  mails,  255-6. 

not  protected  by  charter,  238-40. 

power  to  forbid  the  carriage  of  tickets  of,  between  states,  256. 

transportation  of  tickets  of,  between  states,  forbidden,  302. 

LOTTERY  ADVERTISEMENTS— 

circulation  of,  in  mails  may  be  forbidden,  84. 

MAGNA  CHARTA— 
what  is,  132-3. 

MAIL— 

may  be  closed  to  lotteries,  255-6. 

may  be  closed  to  obscene  matter  and  lottery  advertisements,  84. 

protected  against  opening,  103. 

system,  administration  of,  123. 

MANDAMUS  (See  Public  Officer). 

MANUFACTURING- 

distinguished  from  commerce,  284* 


442  INDEX 

MARBURY  V.  MADISON— 

doctrine  of,  34. 
MARGIN— 

sale  of  stock  on,  137. 
MARITIME  INSURANCE  (See  Insubance). 
MARINERS   (See  Sailoes). 
MARITIME  JURISDICTION— 

(See  Jurisdiction). 

admiralty  jurisdiction  in  federal  judiciary,  305-6. 

distinguished  from  commercial  power,  306.  ' 

extent  of  grant  of,  to  Congress,  306-7.  i 

legislative  as  well  as  judicial,  306-7.  | 

MARITIME  OFFENSES—  | 

federal  jurisdiction  of,  322-3.  j 

MARRIAGE—  ,1 

within  control  of  state,  222.  1 

MARSHAL—  ;j 

not  accountable  to  state  courts  for  homicide  In  course  of  duty,  358-ft      J 
MARTIAL  LAW—  j 

when  declared,  333.  i 

MASSACHUSETTS—  | 

constitution  of,  9-10.  5 

McCULLOCH  V.  MARYLAND—  J 

doctrine  of,  311.  4 

cited,  311.  I 

MEASURES  (See  Weights  and  Measuees). 
MEAT  INSPECTION  LAWS— 

validity  of,  303. 
METRIC  SYSTEM— 

use  of,  permitted  by  act  of  Congress,  320. 
MILITARY  JURISDICTION— 

defined,  332-4. 
MILITARY  POWER— 

exercise  of,  during  actual  hostilities,  330-2. 

vested  in  federal  government,  329-30. 

MILITIA— 

liability  of,  for  federal  service,  331. 

MILK— 

of  less  than  legal  standard,  liability  for  sale  of,  156. 

MINE— 

limitation  of  hours  of  labor  in,  37. 
regulation  of  labor  in,  141. 


CONSTITUTIONAL   LAW  443 

MINISTERS— 

excluded  from  jury  service,  130. 

MISDEMEANOR— 

triable  without  a  jury,  105. 

MONEY— 

present  exclusive  federal  control  of,  316. 

MONEY  AND  BANKING— 

constitutional  provisions  concerning,  308. 

MORAL  OBLIGATION— 

taxation  to  discharge,  181-2. 

MORALS  (See  Public  Morals). 
MORTGAGE— 

legislation  concerning,  as  impairing  obligation  of  contract,  228-9. 

where  subject  to  taxation,  159-60. 

MUNICIPAL  BONDS— 

not  subject  to  federal  taxation,  319. 

protected  against  impairment  of  obligation  of  contract,  229-30, 

MUNICIPAL  CORPORATIONS— 

suits  against,  368-9. 

MUNICIPAL  PURPOSES— 

taxation  for,  by  state,  184-5. 

MUNICIPAL  TAXING  DISTRICT  (See  Taxing  Distbict). 
MUNICIPALITY— 

abolition  of,  to  avoid  payment  of  debts,  231-2. 

NATIONAL  BANK- 

power  of  Congress  to  charter,  251-3. 

"NATIONALS"— 

term  for  inhabitants  of  ceded  Spanish  colonies,  73-4. 

NATIONS  (-Sfee  Law  of  Nations). 

NATURALIZATION— 

collective,  75. 

exclusive  power  of  federal  government  over,  74-5. 

to  what  persons  permitted,  74-5. 

NAVIGABLE  WATERS— 

jurisdiction  of,  in  federal  courts,  305-6. 

NAVIGATION— 

improvement  of,  not  taking  of  property,  211. 
NECESSARY— 

signification  of,  in  connection  with  implied  federal  powers,  252-3. 
S— 30 


444  INDEX 

NEGRO— 

accused  not  entitled  to  have  negro  on  jury,  130. 

methods  of  excluding  from  suffrage  in  some  states,  79-80. 
NEUTRAL  STATES  {Sec  States). 
NEW  STATES— 

additional  limitation  upon  powers  of,  whether  valid,  272-3. 

admission  of,  into  Union,  271-2. 
NON-JUDICIAL  POWERS— 

cannot  be  conferred  on  courts,  18-9. 
NOTES— 

{See  Bank  Notes). 

{See  Government  Notes). 

where  taxable,  164. 
NOTICE— 

by  publication,  125. 

essential  to  due  process,  113-5. 

how  far  essential  to  taxation,  120-1. 

kind  of,  required  by  due  process  of  law,  124-5. 

OBJECTS— 

of  taxation,  in  general,  184. 
OBLIGATIONS— 

{See  Impairment  of  Obuqations  of  Contracts). 

{See  Moral  Obligation). 
OBSCENE  MATTER— 

circulation  of,  in  mails,  may  be  forbidden,  84. 
OCCUPATION— 

power  to  license,  144. 
OFFICER— 

(See  Administrative). 

(See  Appointment  of  Officers). 

(See  Public  Officer). 

remedy  for  violation  of  Fourteenth  Amendment  by,  61-2. 

state,  basis  of  liability  of,  for  illegal  acts,  373. 

state,  suits  against,  370-2. 

whether  protected  by  unconstitutional  act,  46-7. 
OFFICIAL  ACTS— 

illegal,  suits  to  prevent,  371-2. 

personal  liability  of  officers  for,  when  illegal,  370-1. 

suits  to  compel,  372. 

OLEOMARGARINE— 

prohibition  of  sale  of,  in  imitation  of  butter,  constitutional,  300. 
prohibitive  taxes  upon  artificially  colored,  256. 


CONSTITUTIONAL   LAW  445 

OLEOMARGARINE— Continued. 

whether  sale  of  may  be  forbidden,  141,  156. 
OPPRESSION— 

protection  against,  146-8. 
ORDER,  PUBLIC— 

protected  by  police  power,  143. 
ORDINANCE  OF  1787— 

history  of,  8. 
ORIGINAL  JURISDICTION— 

of  federal  courts  (See  Fedebal  Courts). 
"ORIGINAL  PACKAGE"— 

doctrine  of,  277-80. 

refers  to  packages  used  in  wholesale  trade,  278-80. 

PARCEL  BUSINESS— 

power  of  Congress  to  assume,  321. 
PARLIAMENT— 

absolute  power  of,  31. 

double  function  of,  4. 

power  of,  3. 
PARSON  (See  Ministebs). 
PARTY  WALLS— 

contribution  to  expense  of,  152. 
PEACEFUL   REVOLUTION— 

amendment  of  constitutions  by,  14-5. 
PEDDLER— 

subject  to  state  taxation  on  sale  of  interstate  goods,  292. 

PENSIONS— 

supported  by  taxation,  183. 

PEONAGE— 

constitutes  slavery,  89. 

PHILIPPINE  ISLANDS— 

no  constitutional  right  to  grand  jury  in,  270. 
no  constitutional  right  to  trial  by  jury  in,  270. 
status  of,  264. 
whether  birth  in,  confers  federal  citizenship,  69. 

PHYSICIAN— 

requirement  of  residence  for  license,  342. 

PIRACY- 

power  of  Congress  over,  322. 

POLICE  POWER— 

applicable  to  business  affected  with  a  public  interest,  148-50. 


446  INDEX 

rOLlCF:  POWER— Oontiiuied. 

as  aCFecting;  etouomic  interests,  145-55. 
control   of  domestic  relations  under,   144-5. 
exercise  of,  for  protei-tiou  of  public  health,  140-1, 
exercise  of,  for  protection  of  public  safety,  143. 
exercise  of,  for  public  order  and  comfort,  143-4. 
exercise  of,  to  protect  public  morals,  141-3. 
licensing  occupations  under,    144. 
may  comi)el  joint  action  to  improve  property,  151-2. 
may  not  be  used  for  esthetic  purposes,  143-4. 
subjects  of,  140. 

POLITICAL  ACTS— 

power  to  declare  laws  unconstitutional  does  not  extend  to,  40-2. 
POLL  TAX— 

not  dependent  on  income  of  person  taxed,  106. 
POLLUTION  OF  ATMOSPHERE  (See  Atmosphebe). 
PORTO  RICO— 

status  of,  264, 

whether  birth  in,  confers  federal  citizenship,  69. 

POSTAL  po^\t:rs— 

scope  of,  320-1. 
POWER— 

(See  Fedeeal  Powees). 
(See  Judicial  Powebs). 
(See  NoN- Judicial  Powees). 
(See  Police  Power). 
of  federal  government,  limited,  26-7. 
to  annex  territory,  259-60. 
POWER  TO  DECLARE  LAWS  UNCONSTITUTIONAL— 
administrative  regulations  of,  44-6. 
cannot  be  exercised  where  laws  merely  un'nase,  43-4. 
colonial  practice,  32-3. 
early  American  decisions,  33-4. 
not  applicable  to  political  acts,  40-2. 
reason  for  vesting  in  courts,  35-6, 
should  be  exercised  only  in  actual  litigation,  39-40. 
strictly  judicial  in  nature,  36. 

to  be  exercised  only  where  unconstitutionality  clear,  36-9. 
where  vested,  29-36. 

American  doctrine,   32-6. 

English  doctrine,  31. 

European  doctrine,  29-31. 
PREMIUMS— 

laws  against,  invalid,  146. 


CONSTITUTIONAL   LA^  447 

PRESIDENTIAL  ELECTORS— 

regulation  of  election  of,  77-8. 

PRIEST  (See  Ministees). 

PRIVATE  ENTERPRISE— 

supplemented  by  taxation,   177-80. 
PRIVATE  RIGHTS— 

provisions  guaranteeing,  in  constitutions,  50-1. 

PRIVILEGES   (See  Chaktee  Peivileges). 

PRIVILEGES  AND  IMMUNITIES  (See  Citizens). 

PROCEDURE— 

(See  Due  Peocess  of  Law). 

changes  in,  valid  though  ex  post  facto,  95-6. 

requisites  of  due  process  in,  111-2. 

PROCESS- 

(See  Due  Peocess  of  Law). 
service  of,  how  effected,  112-3. 

PROFESSION— 

validity  of  retroactive  qualifications  for,  when  ex  i>ost  facto,  96-9. 

PROGRESSIVE  TAXATION— 

(See  iNHEBiTANCE  TAXES;   Income  Tax;  Taxation). 

PROHIBITION— 

(See  Constitutional  Peohibitions). 
of  manufacture  or  sale  of  liquor,  constitutional,   142. 

PROPERTY— 

(See  Depeivation  of  Peopeety). 

documentary  evidence  of,  where  taxable,  164-5, 

joint  action  to  improve,  may  be  compelled,  151-2. 

kinds  of,  taken  under  eminent  domain,  206-7. 

regulation  of  ownership  of,  150-1. 

special  liabilities  due  to  natural  condition  of,  153. 

taking  of  (See  Taking  of  Peopeety). 

what  is  a  taking  of,  under  eminent  domain,  207-8. 

PROPERTY  QUALIFICATIONS— 
for  suffrage,  abolished,  78-9. 

PROSTITUTES— 

alien,  power  to  forbid  harboring,  258. 

PROTECTION— 

against  fraud,  146. 

against  oppression,  146-8. 
PROTECTION  OF  LAWS  (See  Equal  Protection  of  Laws). 


448  INDEX 

PROTECTION    TO  PERSONS  ACCUSED  OF  CRIME  (See  OoNSTiTiT- 
TioNAL  Law). 

PROTECTIVE  TARIFF— 

not  rendered  Invalid  by  benefits  to  private  business,  181. 
PUBLIC— 

Interest  in  private  contracts  as  authorizing  legislation  concerning, 
243-4. 

PUBLICATION— 
notice  by,  125. 

PUBLIC  ENEMIES— 

children  of,  born  in  United  States,  not  citizens,  71-2. 

PUBLIC  HEALTH— 

protection  of.  under  police  power,  140-1. 
regulation  of,  not  restrainable  by  contract,  240-1. 

PUBLIC  LANDS— 

administration  of,  123. 

PUBLIC  MORALS— 

protected  by  police  power,  141-3. 

regulation  of,  not  restrainable  by  contract,  238-40. 

PUBLIC  OFFICER— 

taxation  for  pensions  of,  183. 

PUBLIC  SAFETY— 

protected  by  police  power,  143. 

regulation  of,  not  restrainable  by  contract,  241. 

PUBLIC   SERVICE   CORPORATION? 

basis  of  fixing  rates  of,  149. 
subject  to  regulation,  148-50. 

PUBLIC  USE— 

as  affecting  right  of  eminent  domain,  201-5. 
PUBLIC  VESSELS  (See  Foreign  Public  Vessels). 
PUNISHMENT— 

(See  Cbuel  and  Unusual  Punishment). 

mitigation  of,  valid,  though  ex  post  facto,  93,  94-5. 

PURE  FOOD  LAWS— 

legislation   concerning,   303. 

QUARTERING  SOLDIERS  {See  Soldiebs). 

RAILROAD— 

(See  Public  Service  Corporations). 
{See  Street  Railroad). 


CONSTITUTIONAL   LAW  449 

RAILROAD— Continued. 

how  far  subject  to  state  regulation  in  service  and  other  matters, 

297. 
liability  for  fire  from  locomotives,  152. 
rates  of,  how  far  subject  to  state  regulation,  295-7. 
whether  construction  of,  justifiable  under  postal  powers,  321. 

RAILROAD  EMPLOYEES— 

liability  of,  for  accident  in  internal  commerce  of  states,  258. 
RAILWAY  COMMISSION— 

cannot  prevent  appeal  to  courts  on  reasonableness  of  rates,  126-8. 

REFRIGERATOR  COMPANY— 

cars  of,  where  subject  to  taxation,  160. 

REGULATION— 

of  corporations,  150. 

of  ownership  of  property,  150-1. 

of  public  service  corporations  {See  Public  Sebvice  Corporations). 

REGULATION  OF  COMMERCE— 

distinguished  from  maritime  power,  306. 

historical  outline  of,  274. 

interstate  commerce  defined,  285-6. 

limitation  on  interstate  commerce  by  states,  invalid,  297-8. 

period  of  commercial  transit,  subject  to,  286-7. 

power  of  Congress  over  interstate  and  foreign  commerce  paramount, 
302-4. 

power  of  Congress  to  enlarge  field  of  state  action,  304. 

reasonable  toll  for  use  of  improvements,  valid,  293. 

state  discrimination  against  interstate  or  foreign  commerce,  invalid, 
289-90. 

state  duties  on  imports  prohibited,  274-5. 

state  regulations  affecting  interstate  commerce  indirectly,  valid,  301. 

state  taxation  as  condition  of  engaging  in  interstate  commerce,  in- 
valid, 292-3. 

state  taxes  indirectly  affecting  interstate  commerce,  valid,  295. 

state  taxes  upon  interstate  transportation,  invalid,  290-1. 

state  taxes  upon  property  engaged  in  interstate  commerce,  constitu- 
tional, 292. 

state  taxes  upon  sales  in  state,  constitutional,  291-2. 

taxation  of  franchise  by  states,  not  prohibited,  293-5. 

transit  across  state  line,  essential  to  interstate  commerce,  287. 

transportation  how  far  subject  to  regulation  by  states,  295-7. 

REGULATION  OF  COMMERCE— Continued. 

regulation  not  hampering  interstate  commerce,  297. 
whether  federal  power  of,  exclusive,  287-9. 


450  IXDEX 

RELIGIOUS   LIBERTY— 

scope  of  term,  90. 

REPUBLICAN  FORM   OF  GOVERNMENT— 

guaranteed  to  states,  83. 

REPUDIATION— 

of  state  debts,  3G6-7, 

RESERVED  POWERS  OF  STATES  (See  States). 
RESTRAINT  OF  TRADE— 

{Sec  Combinations  in  Restraint  of  Tbade). 
RETROACTIVE  LAWS— 

when  inconsistent  with  due  process  of  law,  153-5. 
REVENUE  COLLECTOR— 

property  of,  subject  to  seizure  for  debt  to  government,  116. 
REVOCATION— 

of  corporate  charters  authorized  by  constitutions,  244-5. 
RIGHT— 

(See  Bill  of  Rights). 

of  assemblage  and  petition  guaranteed  by  Congress,  84. 
RULES  OP  EVIDENCE— 

prima  facie,  157. 

SAILORS— 

compulsory  i)erformance  of  contract  of  service  not  slavery,  87-8. 
taxation  for  pensions  of,  183. 

SAVINGS  BANKS    (See  Banks). 

SEARCHES   (See  Uneeasonable  Seabches  and  Seizubes). 
SEGREGATION— 
of  vice,  142-3. 

SEIZURES  (-Sfee  Uneeasonable  Seabches  and  Seizubes). 
SELF-INCRIMINATION— 

extent  of  privilege  against,  99-100. 

not  forbidden  by  due  process  of  law,  128. 

privilege   against,   gives   immunity  only   in   immediate  jurisdiction, 
101. 

privilege  against,  purely  personal,  100. 

protects  only  against  criminal  prosecution,  100-1. 

SEPARATION  OF  DEPARTMENTS  OF  GOVERNMENT— 

(See  Constitutional  Law). 

not  requisite  for  due  process  of  law,  122-3. 
SET-OFF— 

available  as  defense  to  suit  brought  by  state,  369. 


CONSTITUTIONAL   LAW  451 

SETTLEMENT— 

act  of,  4. 
SIDEWALK— 

abutting  owner  liable  for  expense  of,  190-1. 

SITUS— 

of  property,  for  inheritance  taxes,  169-73. 
(See  Inheritance  Taxes). 

of  property  for  purpose  of  taxation,  158-9. 
SLAUGHTER-HOUSE  CASES— 

limiting  and  explaining  Fourteenth  Amendment,  63-5. 

SLAUGHTERING— 
(See  Cattle). 

regulation  of,  not  restrainable  by  contract,  240-1. 
SLAVERY— 

(See  Fugitive  Siaves). 

history  of,  in  United  States,  86-7. 

what  constitntes,  87-90. 

compulsory  service   to   discharge  debt,   88-9. 
imprisonment  for  breach  of  labor  contract,  89-90. 

SOLDIERS— 

quartering,  In  private  houses,  334. 
taxation  for  pensions  of,  183. 

SOVEREIGNTY— 

of  federal  government  in  territories,  260-1. 
political,  not  accountable  to  individuals,  365-6. 

SPANISH  CESSIONS— 

status  of,  264. 
SPANISH  COLONIES  OF  UNITED  STATES— 

status  of  native  inhabitants  of,  73-4. 

SPECIAL  ASSESSMENTS   (See  Local  Assessments). 

STATE  BONDS— 

not  subject  to  federal  taxation,  319. 

STATE  CONSTITUTIONS— 

(See  Constitution). 
bill  of  rights  in,  53. 

STATE  LAWS— 

inferior  to  laws  of  federal  government,  27-8. 

STATES— 

(See  New  States). 

(See  State  Constitutions). 

action  of,  subject  to  limitation  of  Fourteenth  Amendment,  61-5. 


452  INDEX 

STATES — Continued. 

construction  of  statutes  of,  by  courts  of,  followed  by  federal  courts, 

364-5. 
control  of  corporations  by.  138-9. 

discrimiuation  by,  against  citizens  of  other  states,  forbidden,  338. 
discrimination  by,  against  interstate  or  foreign  commerce,  invalid, 

2S9-90. 
diversities  of  jury  trial  in,  105-0. 
effect  upon,  of  Fourteenth  Amendment,  58-9. 
enjoining  suit  on  behalf  of,  373-5. 
federal  power  over  federal  districts  within,  328-9. 
federal  prohibitions  upon,  before  1865,  54-6. 
forbidden  to  levy  tonnage  duties,  282-3. 
general  theory  of  powers  of,  22-3. 

governmental  functions  of,  not  subject  to  federal  taxation,  319. 
guaranteed  republican  form  of  government,  83. 

interference  by,  with  exercise  of  federal  rights,  unconstitutional,  347. 
interference  of,  with  federal  functions,  345-6. 

interpretation  of  common  law  by,  followed  by  federal  courts,  362-3. 
legislation  of,  affecting  federal  functions  remotely,  not  invalid,  347. 
legislation  of,  affecting  interstate  commerce    (See  Regulation  of 

Commebce). 
limitations  of,  upon  suffrage,  79-81. 

may  give  own  citizens  benefit  of  proprietary  interest,  338-9. 
participation  of,  in  federal  government,  345. 
power  in  reference  to  legal  tender,  311-2. 
powers  of  governments  of,  before  1789,  23-5. 
powers  of,  under  federal  constitution,  25-6. 
privileges  of  citizens  of,  in  other  states,  335-6. 
prohibited  from  levying  duties  on  imports,  274-5. 
protected  against  invasion  and  domestic  violence,  83. 
relations  between,  335-44. 
relation  of,  to  United  States,  344-8. 
reserved  powers  of,  257-8. 

stand  to  each  other  in  relation  of  foreign  countries,  335. 
suffrage  in  (See  Suffeaqe). 

suits  against,  by  own  citizens,  forbidden,  369-70. 
suits  against,  not  cognizable  in  federal  courts,  365-6. 
suits  between,  359-60. 

suits  between  states  and  United  States,  360. 
suits  between,  upon  bond  debts,  367-8. 
taxation  by,  of  federal  agencies  or  property,  346. 
STATUTE— 

Interpretation  of,  by  courts  of  enacting  states,  followed  by  federal 

courts,  364-5. 


•i 


CONSTITUTIONAL   LAW  453 

STATUTE  OF  LIMITATIONS— 

action  barred  by,  cannot  be  revived  by  statute,  154-5. 
STAY  LAWS— 

unconstitutional  as  impairing  obligation  of  contracts,  228. 
STOCK— 

sale  of,  on  margin,  137. 

shares  of,  where  taxable,  166-7. 

where  taxable  on  death  of  owner,  172. 
STORE  ORDERS— 

payment  in,  may  be  forbidden,  147. 

payment  of  wages  in,  37. 
STREET— 

changes  in,  whether  taking  of  property,  211-3. 

proper  use  of,  213-4. 
STREET  RAILROAD— 

(See  Public  Service  Corporations). 

franchise  from  city  not  affected  by  extension  of  corporate  life  of, 
237. 

franchise  of,  surviving  corporate  charter,  245-6. 

regulation  by  court,  18. 
STRICT  CONSTRUCTION  (See  Federal  Powers). 
SUFFRAGE— 

constitutional    changes   concerning,    before    Fifteenth    Amendment, 
78-9. 

early  qualifications  for,  in  the  states,  76. 

not  necessary  incident  of  citizenship,  81-2. 

original  provisions  of  federal  constitution  concerning,  76-8. 

relation  of  limitations  of,  to  congressional  representation,  82. 

requirements  for,  within  control  of  states,  341. 

state  limitations  upon,  since  Fifteenth  Amendment,  79-81. 
SUGAR  GROWERS— 

may  be  exempted  from  taxation  upon  methods  of  refining,  195. 
SUIT— 

foreign,  on  contract,  247-8. 
SURVEYS— 

before  compensation,  for  exercise  of  eminent  domain,  216-7. 
TAKING  OF  PROPERTY— 

creation  of  noise  does  not  constitute,  210-11. 

improvement  of  navigation  does  not  constitute,  211. 

under  eminent  domain,  what  constitutes,  207-8. 

whether  changes  in  public  streets  constitute,  211-4. 
TAXATION— 

(See  Local  Assessments). 

assessment  of,  by  courts,  22. 


454  INDEX 

TAXATION— Continued. 

avoidance  of,  for  non-payment  of  creditors,  230-1. 

by  state,  for  municipal  purposes,  1S4-5. 

by  states  of  federal  agencies  or  property,  unconstitutional,  346. 

classification  of  objects  of,  in  general,  184. 

confiscatory,  wbetlier  constitutional,  197-8. 

creation  of  municipal  taxing  districts  for,  185-8. 

different  liinds  of,  191. 

exemptions  from,  180-1. 

exemption  from,  contract  protected  against  impairment,  234. 

federal  powers  of,  317-8. 

for  demoralizing  public  benefits,  invalid,  175-7. 

for  private  purposes,  invalid,  175. 

for  public  charity,  valid,  183. 

for  support  of  governmental  functions,  173-5. 

inheritance  taxes,  169-73. 

(See  Inheritance  Taxes). 

jurisdiction  for  purpose  of,  158-73. 

legislative  discretion  in  selecting  objects  of,  191-6. 

meaning  of  uniformity,  within  constitutional  requirements,  318. 

objects  of,  influenced  by  historical  considerations,  180. 

of  corporate  assets  affected  by  location,  160-3. 
where  assests  in  several  states,  161-3. 

of  credits  employed  in  business,  165-6. 

of  debts,  163-4. 

of  documentary  evidence  of  debts  or  property,  as  affected  by  loca- 
tion, 164-5. 

of  franchises,  167-9, 

of  real  estate  and  chattels,  as  influenced  by  location,  159-60. 

of  shares  of  stock,  166-7. 

of  state  governmental  functions,  311. 

procedure  for,  required  by  due  process  of  law,  119-21. 

progressive,  whether  constitutional,  196-7. 

situs  of  property  taxed,  158-9. 

to  defray  moral  obligations,  181-2. 

to  supply  needs  for  which  private  enterprise  is  inadequate,  177-80. 

to  support  pensions,  183. 
TAXES— 

(See  Taxation). 

on  imports,  what  constitutes,  276-7. 

on  exports,  what  constitutes,  280-1. 

TAXING  DISTRICT— 

creation  of,  for  special  purposes,  185-8. 
TEACHER— 

excluded  from  jury  service,  130. 


i 


CONSTITUTIOMaL   law  455 

TELEGRAPH— 

ageucy  of  commerce,  284. 

whether  acquisition  of,  is  justifiable  under  postal  powers,  321, 
TELEGRAPH  COMPANY— 

(See  Public  Sebvice  Cobpoeations). 
subject  to  regulation,  148-50. 

TELEPHONE  COMPANY— 

{See  Public  Sebvice  Cobpoeations). 
subject  to  regulation,  148-50. 

TENDER  (See  Legal  Tendee). 

TEN-HOUR  DAY— 

for  women,  valid,  156. 

TERRITORIES— 

application  in,  of  constitutional  prohibitions,  261-2. 

constitutional  provisions  in  general,  not  applicable  to  unincorporated, 

267-70. 
courts  of,  266-7. 
federal  sovereignty  in,  260-1. 
foreign,  temporarily  occupied,  status  of,  270-1. 
implied  powers  to  annex,  259-60. 
of  United  States,  classification  of,  265-6. 
power  to  acquire  unincorporated,  263-5. 
western,  cession  of,  to  United  States,  259. 
whether  birth  in,  confers  federal  citizenship,  69. 

"THE  KING  CAN  DO  NO  WRONG"— 
meaning  of  term,  365. 

THIRTEENTH  AMENDMENT  (See  Fedebal  Constitution). 

TOLL— 

for  use  of  improvements  in  Interstate  commerce,  valid,  293. 

TOLL  BRIDGE— 

charter  to  build,  not  exclusive,  235-6. 

TONNAGE  DUTIES— 

by  states,  forbidden,  282-3. 

TRACK  ELEVATION— 
may  be  required,  152. 

TRADERS— 
state  requirement  of  licenses  for  foreign  traders,  unconstitutional,  338. 

TRADING  STAMPS— 

law  against,  invalid,  146. 

TRANSFER— 

of  cases  from  state  to  federal  courts,  354-7. 


456  INDEX 

TRANSPORTATION— 

interstate,  state  taxes  upon,  invalid,  290-1. 
TRANSPORTATION  COMPANIES— 

subject  to  regulation.  148-50. 
TREATIES— 

power  to  make,  326-8. 
TRIBAL  INDIANS  (See  Indians). 
TRIBUNAL  {See  Judicial  Tbibunal). 

UNCONSTITUTIONAL— 

(Sec  Power  to  Declare  Laws  Unconstitutional). 

act,  efifect  of,  46-8. 

where  only  partially  unconstitutional,  47-8. 
UNDERTAKING— 

requirement  of  license  for,  held  invalid,  144. 
UNIFORMITY— 

of  taxation  construed,  318. 
UNINCORPORATED  TERRITORIES    {See   Tebbitobies ) . 
UNION  (See  United  States). 
UNITED  STATES— 

citizens  of  {See  Citizens). 

different  meanings  of,  69-70. 

nature  of  union  of,  344-5. 

relation  of,  to  states,  344-8. 
UNITED  STATES  CONSTITUTION   {See  Fedebal  Constitution). 
UNIT  RULE— 

in  taxation  of  corporations,  162-9. 
UNREASONABLE  SEARCHES  AND  SEIZURES— 

privilege  against,  applicable  to  criminal  proceedings  only,  101-2. 

privilege  against,  extends  to  mails,  102-3. 

prohibition  of,  forbids  general  warrants,  103-4. 
UNWRITTEN  CONSTITUTIONS  (-Sfee  Constitution). 
UNWRITTEN  LAW  {See  Law). 
USAGE— 

as  affecting  due  process  of  law,  115-7. 

as  affecting  objects  of  taxation,  180. 

VERDICT— 

unanimous,  as  element  of  jury  trial,  104. 
VESSELS  {See  Foreign  Public  Vessels). 
VIADUCT— 

erection  of,  in  street,  not  actionable,  213. 


CONSTITUTIONAL   LAW  457 

VICE— 

segregation  of,  142-3, 
VISITATION,  COURT  OF  (See  Court  of  Visitation). 

WAREHOUSE  RECEIPTS— 

where  taxable,  165. 
WARRANT— 

general,  constitutes  unreasonable  search  and  seizure,  103-4. 
WATER  COMPANIES— 

(See  Public  Service  Corporations). 

subject  to  regulation,  148-50. 
WEIGHTS  AND  MEASURES— 

power  of  Congress  over,  320. 
WILSON  ACT— 

constitutionality  of,  304. 

in  regard  to  power  of  states  over  imported  liquor,  300. 
WITNESS— 

confronting,  not  required  by  due  process  of  law,  128-d. 


w.  B.  c. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


OCT  2  4  1960 
MAY  20 


•:i  "^^ 


MAY  3 


Form  L9-17»t-8.'55  (B333984)444 


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